Citation Nr: 22008095 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 14-42 084 DATE: February 11, 2022 ORDER A rating greater than 30 percent for sarcoidosis with pulmonary and skin involvement, earlier than December 12, 2011 and thereafter, is denied. FINDING OF FACT 1. In a May 2010 rating decision, the RO denied a rating greater than 10 percent for sarcoidosis with pulmonary and skin involvement. The Veteran did not appeal this rating decision. 2. Her claim for an increased rating for sarcoidosis was received on December 12, 2011. 3. At worse, the Veteran's sarcoidosis was manifested by pulmonary function test (PFT) results of FEV-1 of 56- to 70-percent predicted. CONCLUSION OF LAW The criteria for a rating greater than 30 percent for sarcoidosis with pulmonary and skin involvement, earlier than December 12, 2011 and thereafter, have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 4.3, 4.7, 4.96, 4.97, Diagnostic Codes (DC) 6600, 6846. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1978 to March 1993. These matters came before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the RO. In a September 2020 decision, the Board assigned a 30 percent rating for the sarcoidosis with pulmonary and skin involvement effective December 12, 2011. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted the parties joint motion for partial remand (JMPR) and vacated and remanded the portion of the Board's decision that denied ratings greater than 10 percent prior to December 12, 2011 and greater than 30 percent from December 12, 2011 for the sarcoidosis with pulmonary and skin involvement. Specifically, the parties agreed that remand was necessary because the Board (1) failed to discuss relevant evidence that may entitle the Veteran to a rating greater than 30 percent for the sarcoidosis and (2) did not discuss whether the Veteran was entitled to an effective date prior to December 12, 2011 for award of a rating higher than 10 percent (i.e., the 30 percent rating) for the sarcoidosis. 1. Entitlement to a rating greater than 30 percent for sarcoidosis with pulmonary and skin involvement, to include entitlement to an effective date earlier than December 12, 2011 for the grant of an increased 30 percent rating for sarcoidosis Unless otherwise specified, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400. The effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. The law provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b). The Veteran's claim for an increased rating for sarcoidosis was received on February 3, 2010. In the May 2010 rating decision, the RO denied a rating greater than 10 percent for the Veteran's sarcoidosis with pulmonary and skin involvement. The Veteran did not appeal the May 2010 rating decision. Her claim for an increased rating for sarcoidosis was received on December 12, 2011. The March 2010 VA examination report documents the Veteran's report that she has been on medication, intermittently for her breathing. She stated that she had progressively worsening breathing difficulty for the past 20 years, having shortness of breath with no triggering event or pattern. She used an inhaler at least once per week for shortness of breath which provided some relief, but she still complained of shortness of breath that would last 4 to 5 days per event. She was still active even though she experienced shortness of breath but moved at a slower pace. She could not walk more than 20 to 30 minutes without experiencing shortness of breath and had to take a break to occasionally use her inhaler. Since service, she had not had any hospitalizations for her sarcoidosis but received treatment for her sarcoidosis every 3 months at her primary care provider (not a pulmonologist). She worked as a food services supervisor and reported her sarcoidosis interfered with her job functions and that she had missed 4 weeks of work for periods of shortness of breath that lasted approximately 2 weeks per event. Physical examination of the lungs showed wheezing bilaterally. PFTs were ordered but the physician indicated that the Veteran did not keep her appointment for PFT. The physician concluded that there was no active disease. A February 2011 private treatment record reflects that the Veteran had been prescribed Augmentin for treatment for her pneumonia, upper respiratory infection, and bronchitis but she discontinued its use after 5 doses because of an allergic reaction. Instead, she was prescribed a Z-pack for treatment for her pneumonia, upper respiratory infection, and bronchitis. A rating greater than 10 percent for the service-connected sarcoidosis was denied in a May 2010 rating decision. The Veteran did not file a timely appeal of this rating. Her claim for an increased rating for the sarcoidosis was received on December 12, 2011. While the February 2011 private treatment records reflect that the Veteran was prescribed antibiotic medications (Augmentin and Z-pack) for treatment of her symptoms, there was no demonstration that her symptoms required chronic low dose or intermittent corticosteroid therapy (see DC 6846, criteria for rating sarcoidosis (30 percent rating criteria)). Thus, there was no evidence received within a year of the December 12, 2011 claim where it was ascertainable that an increase in the sarcoidosis disability had occurred. To the extent that the Veteran argues that June 2010 PFT results showed an increase in disability, June 2010 is not within a year of the December 12, 2011 claim for increase. Therefore, the appropriate effective date for assignment of the increased 30 percent rating is the date of receipt of claim and an effective date earlier than December 12, 2011 (date of claim), for the assignment of the increased 30 percent rating for sarcoidosis is not warranted. The rating for the Veteran's sarcoidosis with pulmonary and skin involvement has been assigned pursuant to diagnostic code (DC) 6846-6600. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. Under DC 6600 (the criteria for rating bronchitis), a 30 percent rating is assigned for FEV-1 of 56- to 70-percent predicted, or; Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 56 to 70 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by Single Breath Method (DLCO (SB)) 56- to 65-percent predicted. A 60 percent rating is assigned for 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 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; requires outpatient oxygen therapy. Under DC 6846 (the criteria for rating sarcoidosis), a 30 percent rating is assigned for pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids. A 60 percent rating is assigned for pulmonary involvement requiring systemic high dose (therapeutic corticosteroids for control. 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. § 4.96 (a) provides that 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. Instead, 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. Thus, VA will evaluate coexisting service-connected respiratory conditions covered by § 4.96 (a) under the criteria enumerated in the predominant disability's diagnostic code. See Urban v. Shulkin, 29 Vet. App. 82, 89, 90-91 (2017). When evaluating based on Pulmonary Function Tests (PFT's), use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. When there is disparity between the results of different PFT's 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. See 38 C.F.R. § 4.96(d)(5), (6). The January 2012 VA examination report reflects that the Veteran was on steroid treatment for her sarcoidosis from 1983 to 2011. She received treatment for pneumonia on 4 occasions during 2011. The examiner indicated that the Veteran's sarcoidosis did not require the use of oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics, or oxygen therapy. Findings, signs, or symptoms attributable to the sarcoidosis included no symptoms and progressive pulmonary disease. Chest x-ray findings showed no evidence of acute cardiopulmonary disease and shadowing at the periphery of the left lung base due to epicardial fat. PFT results from June 2010 showed moderately severe restriction. The June 2012 VA examination addendum reflects that the Veteran had no symptoms attributable to her sarcoidosis. A May 2014 VA medical opinion reflects that PFT results from 2010 showed FEV-1 was 57-percent predicted; FVC was 54-percent predicted, and FEV-1/FVC was 103 percent (pre-bronchodilator). Post-bronchodilator test results showed FEV-1 was 49 percent, FVC was 49 percent, and FEV-1/FVC was 111 percent. DLCO findings were not documented. The examiner explained that these PFT results were consistent with a restrictive lung disease and the Veteran did not have chronic obstructive pulmonary disease (COPD) (an obstructive lung disease). The April 2019 VA examination report documents the Veteran's complaint of worsening sarcoidosis since her last examination. She complained of ongoing breathing difficulties with shortness of breath and a hoarse voice. She reported that because of her shortness of breath, her walking distances had decreased. She managed her shortness of breath with albuterol as needed. The examiner indicated that the Veteran's sarcoidosis did not require the use of oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics, or oxygen therapy. However, she did intermittently use inhalation bronchodilator therapy. Findings, signs, or symptoms attributable to the sarcoidosis included persistent symptoms of dyspnea on exertion and pulmonary involvement. X-ray findings showed no hilar lymphadenopathy was observed. PFT results (May 2019) showed FVC was 65 percent predicted, FEV-1 was 69 percent predicted and FEV-1/FVC was 84 percent. The examiner indicated that FVC result most accurately reflected the Veteran's level of disability. DLCO testing was not performed because it was not indicated for the Veteran's condition. The May 2019 PFT results show FEV-1 was 69-percent predicted and FEV-1/FVC was 84 percent. The 2010 PFT results (as documented in the May 2014 VA medical opinion) show FEV-1 was 57-percent predicted and FEV-1/FVC was 103 percent. The Veteran's sarcoidosis disability did not require use of oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics, or oxygen therapy (See January 2012 and April 2019 VA examination reports). Moreover, chest x-ray findings showed no evidence of acute cardiopulmonary disease. The Board is aware that in the May 2019 PFT results, the examiner indicated that FVC result most accurately reflected the Veteran's level of disability. While the FVC findings in June 2010 (as documented in the May 2014 VA medical opinion- 54-percent predicted), would suggest an increased 60 percent rating was warranted pursuant to the criteria for evaluating asbestosis, the Veteran has not been diagnosed with asbestosis and reiterates that her sarcoidosis disability is evaluated pursuant to DC 6600 which provides for ratings based on FEV-1, FEV-1/FVC, DLCO, cardiopulmonary complications (i.e., cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, etc.), and the necessity for oxygen therapy after respiratory failure and DC 6846 which provides for ratings based on pulmonary involvement requiring corticosteroid use for control and cardiopulmonary complications. See 38 C.F.R. § 4.97, DC 6600, 6846; see also Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (holding that when a condition is specifically listed in the rating schedule, it may not be rated by analogy). Moreover, the Board reiterates that the June 2010 PFT findings are outside the appeal period. Sarcoidosis is specifically listed in the rating schedule and May 2019 PFT results show FEV-1 was 69-percent predicted and FEV-1/FVC was 84 percent. The 2010 PFT results (as documented in the May 2014 VA medical opinion) show FEV-1 was 57-percent predicted and FEV-1/FVC was 103 percent. Additionally, she has not demonstrated any cardiopulmonary complications (i.e., cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, etc.) associated with her sarcoidosis and did not require use of oral or parenteral corticosteroid medications for control of her sarcoidosis. Thus, the manifestations of her sarcoidosis disability are adequately contemplated by the assigned 30 percent rating and a rating greater than 30 percent is not warranted. Again, she has not been diagnosed with asbestosis or any other interstitial lung disease, mycotic lung disease, pulmonary tuberculosis, or nontuberculous disease, thus ratings greater than 30 percent are not warranted under any other criteria contemplating respiratory disabilities. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.