Citation Nr: 9813732 Decision Date: 04/30/98 Archive Date: 05/08/98 DOCKET NO. 95-38 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for a common variable immunodeficiency disorder, with chronic blood abnormalities and respiratory infections, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from September 1988 to September 1990. This matter is before the Board of Veterans’ Appeals (BVA or Board) on appeal from a September 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied an increased evaluation for a common variable immunodeficiency disorder (CVID), with chronic blood abnormalities and respiratory infections. In May 1997, the Board remanded the veteran’s appeal to the RO so that additional evidentiary and procedural development could be undertaken. Upon its completion, the case was returned to the Board for further appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL It is contended by the veteran, in substance, that the disability at issue is manifested by, among other things, severe fatigue, frequent respiratory and sinus infections, earaches, headaches, and swollen glands. Monthly infusion of gamma-globulin is noted to be required, as is the regular usage of oral antibiotics. In the recent past, eleven days of work reportedly have been missed due to respiratory distress. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the record supports the assignment of a 50 percent evaluation, but none greater, for CVID and associated residuals. FINDING OF FACT The veteran’s CVID and residual disorders of the blood and respiratory system require frequent infusion of immunoglobulins and entail more than six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent nasal discharge, in addition to chronic bronchitis with a forced expiratory volume at one second following bronchodilation of 67.4 percent of predicted normal, but without anemia or multiple joint and organ involvement productive of a moderately severe impairment of health. CONCLUSION OF LAW The criteria for the assignment of a 50 percent rating for CVID with residual disorders of the blood and respiratory system, but none greater, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20 (1997), and Part 4, Diagnostic Code 6399- 6350-[6510-6600, as in effect on October 7, 1996)]. REASONS AND BASES FOR FINDING AND CONCLUSION As an initial matter, the Board finds that the veteran’s claim for increase is plausible and capable of substantiation and is therefore well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). An allegation that a service-connected disorder has become more severe is sufficient to well-ground a claim for increase. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required in order to comply with the duty to assist. It is noted in this regard that in connection with claim for increase initiated in June 1995, the veteran was afforded VA examinations in July 1995, April 1996, and October 1997 for evaluation of the disorder herein at issue. Also, the Board sought through its remand action in May 1997 to obtain updated treatment records, which were obtained and added to the veteran’s claims folder. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1997). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (emphasis added). 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 (1997). Service connection for CVID with postoperative residuals of pansinusitis was established by the RO in rating action effected in July 1991, at which time such disorder was rated by analogy by the RO under rating criteria for sinusitis, specifically, Diagnostic Code 6510. More recently, the disability in question is shown to have been recharacterized as CVID with chronic blood abnormalities and respiratory infections and to have been evaluated by analogy to rating criteria for systemic lupus erythematosus (Diagnostic Code 6350) and hypochromic-microcytic and megaloblastic anemia (Diagnostic Code 7700). Where a particular disability for which the veteran is service-connected is not listed, it may be rated by analogy to a closely related disability in which not only the functions affected but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27 (1997); see also Lendenmann v. Principi, 3 Vet. App. 345 (1992); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Board observes that subsequent to the September 1995 rating decision now on appeal, which denied an increased evaluation for the veteran’s CVID, the VA’s Schedule for Rating Disabilities was amended. By regulatory amendment, effective October 23, 1995, substantive changes were made to the schedular criteria for evaluating hemic and lymphatic disorders, including anemia, as set forth in 38 C.F.R. § 4.117 (1997). See 60 Fed. Reg. 49225-49228 (1995). Under the regulatory changes for anemia, residuals are to be rated separately. These changes include evaluating the levels of hemoglobin together with clinical findings when assessing the disability. Consideration is also to be given to additional clinical findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath on mild exertion. The percentage disability evaluations have also been updated. Id. Further, by regulatory amendment, effective August 30, 1996, substantive changes were made to the schedular criteria for evaluating infectious diseases, immune disorders and nutritional deficiencies (systemic conditions), including lupus, as set forth in 38 C.F.R. § 4.88b (1997). See 61 Fed. Reg. 39873-39877 (1996). The regulatory changes for lupus primarily relate to the revision of the note under Diagnostic Code 6350, which makes it more clear that lupus is evaluated either by combining the evaluations for residuals or by evaluating under the Diagnostic Code 6350 criteria, whichever method results in a higher evaluation. The percentage disability evaluations have also been updated. Id. Where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). As there is no showing of a contrary intent on the part of Congress with respect to the aforementioned changes to rating criteria penitent to the instant claim, the veteran’s claim for increase must be addressed under both the “old” and “new” criteria. Prior to October 23, 1995, incipient pernicious anemia warranted the minimum rating of 30 percent where there were characteristic achlorhydria and changes in blood count. Where there was chronic anemia following acute attacks with characteristic definite departures from normal blood count, with impairment of health and severe asthenia, a 60 percent evaluation was for assignment. As of October 23, 1995, hypochromic-microcytic and megaloblastic anemia warrants a 0 percent evaluation where the hemoglobin level is 10 grams per 100 milliliters or less, and is otherwise asymptomatic. A 10 percent evaluation is assignable where the hemoglobin level is 10 grams or less with findings such as weakness, easy fatigability or headaches. Where the hemoglobin level is 8 grams or less and there are findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath, a 60 percent evaluation is for assignment. Prior to August 30, 1996, a 30 percent rating for systemic lupus erythematosus required exacerbations of a week or more 2 or 3 times a year; or symptomatology productive of a moderate impairment of health. A 60 percent evaluation required chronic disablement with frequent exacerbations and multiple joint and organ manifestations productive of a moderately severe impairment of health. An 80 percent evaluation necessitated less than totally incapacitating symptoms, but with symptoms combinations that were productive of a severe impairment of health. The August 1996 changes, as noted above, did not alter the aforementioned criteria. Additionally, other analogous criteria for respiratory disorders are for application in this case, as his service- connected disorder is manifested, in part, by respiratory and sinus infections. As this is the case, the Board notes that subsequent to the September 1995 rating decision now on appeal, the VA’s Schedule for Rating Disabilities was amended, effective October 7, 1996, whereby the rating criteria for determining the proper disability evaluation for respiratory disorders have been substantially revised. See 61 Fed. Reg. 46720-46731 (1996) (to be codified at 38 C.F.R. §§ 4.96-97). Hence, the veteran’s CVID is to be evaluated under the old rating criteria (prior to October 7, 1996), and the new rating criteria (after October 6, 1996), for other respiratory disorders. Prior to October 7, 1996, sinusitis with x-ray manifestations only with mild or occasional symptoms warranted a 0 percent rating. Moderate sinusitis with discharge or crusting or scabbing and infrequent headaches warranted a 10 percent rating. A 30 percent rating was assignable for severe sinusitis with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. Postoperative sinusitis following radical operations with chronic osteomyelitis requiring periodic curettage, or severe symptoms after repeated operations, warranted a 50 percent rating. As of October 7, 1996, sinusitis detected by x-ray only warrants a 0 percent rating. With one or two incapacitating episodes per year requiring prolonged (4 to 6 week) antibiotic treatment; or three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting, a 10 percent rating is for assignment. A 30 percent evaluation for sinusitis requires three or more incapacitating episodes per year requiring prolonged antibiotic treatment; or more than six non- incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. Following radical surgery with chronic osteomyelitis, or near constant sinusitis after repeated surgeries, a 50 percent rating is assignable. Prior to October 7, 1996, mild bronchitis with a slight cough but no dyspnea and only a few rales warranted a 0 percent rating. Moderate bronchitis with considerable night or morning cough, slight dyspnea on exertion, and scattered rales, warranted a 10 percent evaluation. A 30 percent rating was for assignment where the bronchitis was moderately severe with a persistent cough at intervals throughout the day, considerable expectoration, considerable dyspnea on exertion, rales throughout the chest, and beginning chronic airway obstruction. As of October 7, 1996, chronic bronchitis is rated on the basis of findings upon pulmonary function testing, with a 10 percent rating being assigned for a forced expiratory volume at one second (FEV-1) of 71 to 80 percent of predicted normal or a ratio of FEV-1 to forced vital capacity of 71 to 80 percent of predicted normal, or a diffusion capacity (DLCO) ((SB)) of 66 to 80 percent of predicted normal. With an FEV1 or FEV1/FVC ratio of 56 to 70 percent of predicted normal, or a DLCO (SB) of 55 to 65 percent of predicted normal, a 30 percent rating is for assignment. As to the question of the role of the veteran’s bronchitis and sinusitis in this matter, the Board points to a statement from a service department physician in March 1993, wherein it was noted that CVID resulted from the inadequate production of functional antibodies by the immune system, manifested by an increased frequency of sinus and pulmonary infections and occasionally leading to chronic bronchiectasis and obstructive airway disease, and at times, to autoimmune diseases. The veteran’s initial diagnosis of CVID was noted to be preceded by sinus infections and episodes of chronic bronchitis. Monthly infusions of intravenous gamma globulin were required, and it was noted that there had been an increase in sinus symptoms and infections over the previous several months, requiring a sinus puncture and lavage in November 1992. Based not only on the foregoing medical statement, as well as the record as a whole, as constituted both prior to and after the original grant of service connection for CVID and pansinusitis, there is no question that both sinusitis and bronchitis are part and parcel of the veteran’s CVID. As to the current severity of the veteran’s CVID, the Board observes that despite ongoing replacement immulogobulin therapy at a rate of not less than once monthly either by injection or infusion, and, since 1997, at more frequent intervals of two to three weeks, there has been a progression of the component disorders of sinusitis and bronchitis underlying the veteran’s CVID. Credible testimony supported by medical data confirm the frequent presence of infections of the sinuses and respiratory tract at a rate of up to one monthly, lasting one to three weeks. Such has persisted for some time and has required repeated use of antibiotics, including Bactrim and Cipro, and it is apparent that the veteran has remained on extended or maintenance dosages of antibiotics for extended periods in an apparent effort to stem his repeated infections. Other pertinent manifestations include wheezing throughout the lung fields, shortness of breath on mild exertion, and mild restrictive lung disease by pulmonary function testing in 1997. The provisions of 38 C.F.R. § 4.88b, Diagnostic Code 6350, as in effect both prior to and on August 30, 1996, permit the assignment the greater of a rating based on systemic lupus erythematosus or on the basis of residuals thereof, ratings for which are to be combined. In this instance, while the record identifies frequent exacerbations of CVID and its component disorders, there is not shown to be multiple joint and organ manifestations productive of a moderately severe impairment of health. VA examinations denote involvement of the respiratory system, but findings obtained through recent examination and treatment show no evidence of renal disease, mental changes, anemia, neurologic or musculoskeletal complications, or skin or cardiac involvement. The veteran’s hemoglobin levels have consistently remained within the normal range, despite his complaints of fatigue and lightheadedness, and there has been no showing of characteristic achlorhydria or changes in his blood count, such as would warrant the assignment of a compensable evaluation under the rating criteria for anemia in effect prior to and on October 23, 1995. It is shown that one inservice surgery was required for management of the veteran’s sinusitis, and that a sinus puncture with lavage was necessitated during 1992. Since that time, no further surgical intervention of the sinuses, chronic osteomyelitis, or near constant sinusitis is noted, notwithstanding the existence of more than six non- incapacitating episodes of sinusitis per year with associated headaches, pain, and purulent discharge. Still, on the basis of those recurring episodes and associated manifestations, a 30 percent schedular evaluation is assignable under 38 C.F.R. § 4.97, Diagnostic Code, 6510, as in effect on October 7, 1996. As far as the veteran’s bronchitis is concerned, pulmonary function testing by VA following administration of a bronchodilator in October 1997 yielded an FEV1 of 67.4 percent of predicted normal, for which a 30 percent rating is for assignment under 38 C.F.R. § 4.97, Diagnostic Code, 6600, effective from October 7, 1996. It is apparent that the post-bronchodilation value was in fact less than the pre- bronchodilation FEV-1 of 74.8 (warranting but a 10 percent rating), but the test record indicates that the veteran expended maximal effort in completing the study and experienced dizziness, lightheadedness, and coughing towards the end of some trials. His encounter with those symptoms of which he has routinely complained is viewed as representative of his day-to-day breathing capability. Thus, with resolution of reasonable doubt in the veteran’s favor, a 30 percent rating is found to be in order for chronic bronchitis, which when combined, not added, with the 30 percent evaluation for sinusitis, pursuant to the Combined Ratings Table of 38 C.F.R. § 4.25, result in a combined evaluation for CVID of 50 percent. To the extent indicated, the Board finds that the disability picture presented more nearly approximates the criteria for the assignment of a 50 percent schedular evaluation, but none greater, pursuant to Diagnostic Code 6399-6350-6510-6600. The Board further notes that in Floyd v. Brown, 9 Vet. App. 88, 96 (1996), the United States Court of Veterans Appeals (Court) held that the Board does not have jurisdiction to assign an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The Board, however, is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law and regulations. In Bagwell v. Brown, 9 Vet. App. 157 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or from reaching such a conclusion on its own. In the present case, there is no showing that the veteran’s service-connected CVID has caused marked interference with employment beyond that contemplated by the assigned evaluation or, alone, has necessitated frequent periods of hospitalization. The veteran has reported that, during the recent past, he had missed eleven days of employment as a mail handler due to respiratory difficulties, but the degree to which he has missed work is not inconsistent with the schedular evaluation assigned. See 38 C.F.R. § 4.1 (the percentage evaluations represent as far as can practicably be determined the average impairment in earning capacity). As such, and in the absence of an unusual or exceptional disability picture, the Board finds that the regular schedular standards have not been rendered impractical. Thus, the Board concurs in the RO’s determination in February 1998 that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Bagwell, 9 Vet. App. at 158-159. ORDER A 50 percent schedular evaluation, but none greater, is for assignment for CVID with chronic blood abnormalities, respiratory infections, sinusitis, and bronchitis. BRUCE KANNEE Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -