Citation Nr: 21041242 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-14 654 DATE: July 8, 2021 REMANDED Entitlement to a disability rating in excess of 30 percent for sarcoidosis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 2, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1980 to August 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2018 and December 2019 the Board remanded these claims to the Agency of Original Jurisdiction for additional action. A review of the record since the December 2019 remand does not reflect any developmental actions consistent with the directives of that remand. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Accordingly, remand is required to obtain an adequate medical opinion that complies with the Board remand directives. 1. Entitlement to a disability rating in excess of 30 percent for sarcoidosis is remanded. The Veteran asserts that he is entitled to a rating in excess of 30 percent for sarcoidosis. The Veteran through his representative states that the most recent examination of record is inadequate as the examiner failed to address deficiencies that were raised in the Board's prior December 2019 remand. See Third Party Correspondence/ Appellate Brief Received May 2021. Under Diagnostic Code 6846, sarcoidosis is rated under either the rating criteria of Diagnostic Code 6846, the active disease or residuals of chronic bronchitis as set forth in Diagnostic Code 6600, or as extra-pulmonary involvement under the specific body system involved.38C.F.R. §4.97, Diagnostic Code 6846. Under the specific criteria of Diagnostic Code 6846, a 60 percent rating will be assigned when the evidence of record shows sarcoidosis with pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control. Lastly, a 100 percent rating will be assigned when the evidence of record shows sarcoidosis with cor pulmonale or cardiac involvement with congestive heart failure, or progressive pulmonary disease with fever, night sweats, and weight loss despite treatment. 38C.F.R. §4.97, Diagnostic Code 6846. Sarcoidosis may alternatively be rated as chronic bronchitis under Diagnostic Code 6600. Ratings under Diagnostic Code 6600 fall within service-connected disabilities related to the Trachea and Bronchi and utilize different Pulmonary Function Tests in evaluating disabilities.38C.F.R. §4.97. Those tests include Forced Expiratory Volume in one second (FEV-1), Forced Vital Capacity (FEV-1/FVC) and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)).Under Diagnostic Code 6600, a 60 percent rating is assigned for an 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). A 100 percent rating is assigned for an FEV-1 less than 40 percent of predicted value; or FEV-1/FVC less than 40 percent, 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 the requirement for outpatient oxygen therapy. 38 C.F.R. §4.97, Diagnostic Code 6600. 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). 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). The Board notes that in the previous December 2019 remand decision, the Veteran's Law Judge (VLJ) stated that the examiner noted post-bronchodilator testing was not indicated but failed to provide a reason why. The Judge ordered the VA regional office to complete a new exam for sarcoidosis. The VLJ stated that post testing should be used unless pre-testing was normal or the examiner needs to state why he did not do post testing. To date, there has not been an exam completed that contains recent pulmonary function testing. A Respiratory Conditions Disability Benefits Questionnaire (DBQ) was completed in May 2020 based upon a review of the Veteran's records. However, the examination does not include measurements for PFT pre- or post- bronchodilator results. An addendum report issued in August 2020 clarifies that PFT testing was not possible due to the risk to the Veteran and others due to Covid 19. Similarly, the Veteran was afforded an in-person examination in September 2020. The examiner noted that the Veteran has sarcoidosis. The examination included measurements for PFT pre-bronchodilator results from February 2019; however, there were no pre-bronchodilator results of record subsequent to the Board's December 2019 remand decision and no post-bronchodilator results were provided. The examiner indicated that post-bronchodilator testing has not been completed because it is not indicated for the Veteran's condition. Moreover, the examiner noted that diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO) testing had not been completed and the last DLCO testing was conducted in November 2011. The examiner noted that DLCO is needed, but could not be performed due to COVID 19. Accordingly, the Board finds the May 2020 DBQ and September 2020 VA examination to be inadequate. The Board finds that a new VA examination, including pre and post-PFT results, must be obtained. Moreover, the examiner noted that DLCO testing had not been completed with the last DLCO testing conducted in November 2011. Further, the examiners indicated that DLCO measurements were necessary but couldn't be provided because of COVID 19. The DLCO measurements are pertinent to assigning an appropriate rating for the Veteran's disability, especially since the Veteran stated he has not received any treatment for sarcoidosis since the 1980's. See VA Form 21-4138 received January 2021. Remand is required for a new VA examination. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. When VA provides the Veteran with an examination, the evaluation must be adequate. Barr v. Nicholson, 21Vet. App.303 (2007). As the most recent May 2020 DBQ and September 2020 examination have been deemed inadequate, remand is required. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 2, 2014, is remanded. The Veteran through his representative has requested that the Board grant TDIU based on his service-connected disabilities to include sarcoidosis. See Third Party Correspondence/ Appellant Brief Received May 2021. The Veteran's TDIU claim is known as a Rice TDIU because it was raised during the administrative appeal of the Veteran's claim for an increased rating for his service-connected sarcoidosis and is part of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). The Board notes that the Veteran is in receipt of a 100 percent disability rating for his service-connected posttraumatic stress disorder (PTSD) from December 2, 2014. However, as the period on appeal for an increased rating for the Veteran's sarcoidosis extends back to his December 2011 claim (as well as the one-year period preceding it), the Board finds that entitlement to a TDIU prior to December 2, 2014, is still on appeal. The Board finds that because a decision on the disability evaluation assignment of the issue above could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding issues are inextricably intertwined when a decision on one issue would have a significant impact on a veteran's claim for the second issue). Therefore, the issue of TDIU must also be remanded in this case. The matters are REMANDED for the following action: 1. Request the Veteran submit a VA Form 21-8940 to provide information relevant to his claim for a TDIU. 2. Schedule the Veteran for a VA examination to determine the extent and severity of the Veteran's service-connected sarcoidosis. All indicated studies should be performed, to include a pre and post-pulmonary function testing (PFT). The examiner should review the results of all testing prior to completion of the examination report. The examiner should describe in detail all current manifestations of sarcoidosis. The results of a PFT are needed to determine: (a) the percentage of predicted FVC; (b) the percentage of predicted FEV-1; (c) FEV-1/FVC; and (d) the percentage of predicted DLCO (SB). If a DLCO (SB) (Diffusion Capacity of the Lung for Carbon Dioxide by the Single Breath Method) test is not obtainable, evaluation may be based on alternative criteria as long as the examiner states why the test would not be useful or valid. The examiner should also discuss whether there is: (a) pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids, (b) pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control; or (c) cor pulmonale; or cardiac involvement with congestive heart failure; or progressive pulmonary disease with fever, night sweats, and weight loss despite treatment. The supporting rationale for all opinions expressed must be provided. To the extent possible, the examiner should identify any symptoms and functional impairments due to sarcoidosis alone and discuss the effect of the Veteran's sarcoidosis on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A rationale should be provided for any opinion offered. (Continued on the next page) 3. Adjudicate the Veteran's claim for entitlement to TDIU under the provisions of 38 C.F.R. § 4.16. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, Associate Counsel 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.