Citation Nr: 0005771 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 95-02 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUES 1. Entitlement to an increased evaluation for chronic systemic sarcoidosis, currently evaluated as 60 percent disabling. 2. Entitlement to an increased evaluation for impairment of the sensory branch of the right trigeminal nerve, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from August 1967 to June 1970. This appeal arises from a June 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C., which denied increased rating for sarcoidosis and impairment of the right trigeminal nerve. In his Appeal to the Board of Veterans' Appeals (Board) the veteran raised additional claims. In August 1999 the RO issued a rating decision which addressed the veteran's additional claims. The veteran submitted a notice of disagreement with the denial of his request to reopen his claim for service connection for acne and post inflammatory hyperpigmentation and a compensable rating for a rib fracture. The RO issued a statement of the case in November 1999 as to the issue of whether new and material evidence had been submitted to reopen the claim for service connection for acne and post inflammatory hyperpigmentation. A deferred rating decision was issued regarding the issue of service connection for additional fractures of the ribs. As these issues have not been perfected for appellate review, they will not be addressed in this decision. FINDINGS OF FACT 1. The veteran's service-connected sarcoidosis has not produced cor pulmonale or cardiac involvement with congestive heart failure or progressive pulmonary disease with fever, night sweats and weight loss despite treatment. The impairment due to sarcoidosis has not resulted in markedly severe ventilatory deficit, dyspnea on rest or total incapacity. 2. The veteran's impairment of the right trigeminal nerve is limited to loss of sensation and has not caused loss of motor function; more than moderate incomplete paralysis is not shown. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 60 percent for chronic sarcoidosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.97, Diagnostic Code 6899-6802 (1996); 38 C.F.R. § 4.97, Diagnostic Code 6846 (1999). 2. The criteria for an evaluation in excess of 10 percent for impairment of the right trigeminal nerve have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.124a, Diagnostic Code 8205 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating In general, an allegation of increased disability is sufficient to establish a well-grounded claim when the veteran is seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is satisfied that all relevant facts have been properly developed. No further assistance is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). Pertinent Laws and Regulations. In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2. However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition. The provisions of 38 C.F.R. § 4.2 require that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory, and prognostic data required for ordinary medical classification, a description of the effects of the disability upon the person's ordinary activity. When an unlisted condition is encountered it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies are to be avoided, as are the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor are ratings assigned to organic diseases and injuries to be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1999). During the pendency of this appeal VA published new regulations for rating disability of the respiratory system. 61 Fed. Reg. 46720 (1996). Prior to October 7, 1996, there was no specific diagnostic code for sarcoidosis. The RO had rated the veteran's sarcoidosis under Diagnostic Code 6899- 6802. The provisions of 38 C.F.R. § 4.27 provide that when rating an unlisted condition by analogy, a built-up diagnostic code number will be employed. The first two digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" followed by an additional specific diagnostic code after a hyphen to identify the basis for the assigned evaluation. See 38 C.F.R. § 4.27 The Diagnostic Codes beginning with "68" provide criteria for rating "nontuberculous diseases." Diagnostic Code 6802 provided criteria for rating unspecified pneumoconiosis. Prior to October 7, 1996, Diagnostic Code 6802 provided for a 100 percent rating for unspecified pneumoconiosis that was pronounced with extent of lesions comparable to far advanced pulmonary tuberculosis or pulmonary function tests confirming markedly severe degree of ventilatory deficit; with dyspnea at rest and other evidence of severe impairment of bodily vigor producing total incapacity. A 60 percent evaluation requires severe unspecified pneumoconiosis with extensive fibrosis and severe dyspnea on slight exertion with a corresponding ventilatory deficit confirmed by pulmonary function tests and with marked impairment of health. 38 C.F.R. Part 4, Diagnostic Code 6802 (1996). Effective October 7, 1996, sarcoidosis was added to the rating schedule under Diagnostic Code 6846. Under this code, a 100 percent rating was assigned for sarcoidosis with cor pulmonale or cardiac involvement with congestive heart failure, or progressive pulmonary disease with fever, night sweats, and weight loss despite treatment. A 60 percent rating was assigned for pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control. 38 C.F.R. § 4.104, Diagnostic Code 6846 (1999). The evaluation for fifth (trigeminal) cranial nerve paralysis is dependent upon the relative degree of sensory manifestation or motor loss. A 10 percent evaluation is warranted for moderate incomplete paralysis. Severe incomplete paralysis is rated as 30 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8205 (1999). Factual Background. In October 1970 VA chest X-rays reveals infiltrates of the lungs. Sarcoidosis was diagnosed in January 1973. In April 1973 the RO granted service connection for sarcoidosis rated as 10 percent disabling. In May 1983 a VA examiner made a provisional diagnosis of sarcoidosis involving the trigeminal nerve. The veteran exhibited hypesthesia on the right side of his face. In July 1983 rating action the RO granted service connection for cranial neuropathy of the fifth cranial nerve. A 10 percent rating was assigned. In July 1987 the RO granted an increased rating to 60 percent for sarcoidosis. A September 1989 VA examination revealed no abnormalities of the lungs on palpation or percussion. Lung fields were clear to auscultation. The veteran had loss of sensation in the right maxillary orbit. The veteran reported increase shortness of breath. X-rays of the chest revealed no gross change since the study of November 1988. There was bilateral, basically fibrous infiltrate with some nodular components. The heart was below the upper limits of normal in transverse diameter. Pulmonary function testing revealed moderate airflow obstruction with mild restrictive defect and air trapping. The diagnosis was sarcoidosis with involvement of lungs, tonsils (palatine), and right trigeminal nerve -- active, on steroid therapy. In June 1993 a VA examination was conducted. Examination revealed that heart rate and rhythm were regular. There was no murmurs or gallops. Corneal reflex was absent on the right. Sensation was decreased over the right side of the face. February 1993 VA X-rays revealed evidence of late stage sarcoidosis with no interval changes since the previous examination. An October 1991 electrocardiogram (EKG) was noted to be abnormal. He had normal sinus rhythm with occasional premature supraventricular complexes, right bundle branch block, and rule out inferior infarct. Conclusions on a March 1993 echocardiogram report were normal left ventricular size, wall thickness a function, slightly abnormal septal motion maybe the result of right bundle branch block, flattened interventricular septal contour in systole consistent with right ventricular pressure overload, normal mitral and aortic valves, pulmonic insufficiency and difficulty assessing right ventricular systolic function on the basis of that study. An April VA pulmonary function test revealed moderate airflow obstruction with moderate gas exchanges defect. In October 1995 the veteran was admitted to a private hospital. Records from the Laurel Regional Hospital include pulmonary consult report. Chest X-rays revealed extensive fibro-scarring as well as bulbous changes noted with hyperinflation and perihilar infiltrates. EKG showed right bundle branch and left atrial enlargement. The EKG was abnormal suggestive of right axis deviation and suggestive of pulmonary hypertension. The impression was acute respiratory insufficiency with pACO2 elevation, acute and chronic exacerbation of sarcoidosis, Stage III, with pneumonia, cor pulmonale and pulmonary hypertension as a result of long- standing sarcoidosis, Stage III, and accelerated hypertension. In March 1996 the veteran told a VA examiner that he had had numbness in the right side of his face for fifteen years. It seemed to be getting worse. Examination revealed decreased pinprick sensation in the right temporal, maxillary, and mandibular areas. Extraocular movements were intact. His visual fields were normal. The right pupil was round and reactive to light. March 1996 VA chest X-rays revealed diffuse interstitial fibrotic changes consistent with known sarcoidosis. There had been no interval changes seen since January 1996. In February 1997 the veteran testified at a hearing before the undersigned Member of the Board. He stated that he had had been taken to the hospital for treatment of pneumonia in October 1995. He indicated that he had hypertension due to his lung disease. It had caused his heart to enlarge. He was taking Prednisone to control his symptoms of sarcoidosis. He said that he did not have any sensation on the right side of his face. From below his mouth up the whole right side. He could feel pressure, but he could not feel pain, hot or cold or anything like that. His sarcoidosis affected his daily life. When he walked upstairs or up an incline he had to walk slowly. On a flat surface he could walk about a block before he would get winded, depending on how fast he walked. He could not participate in sports. His doctor had encouraged him to walk and told him just to slow down and rest if he was winded. A VA cardiology examination was performed in May 1997. The veteran reported some shortness of breath. He had some vague chest pain. He had no syncope, but an occasional dizzy spell. The diagnoses were sarcoid, hypertension with a normal echo and no evidence of heart disease. A May 1997 VA radiology report revealed that the heart size was at the upper limits of normal. An EKG was again noted to be abnormal. Also performed was a VA neurology examination. The veteran reported that his numbness had worsened. In the past it had been intermittent and was now persistent. He had a greater lack of feeling. If he got dust caught in his eye or other things and it became inflamed, he had been told to consult an ophthalmologist because he was at risk of developing a corneal ulceration. Examination revealed he was not able to distinguish a pin in any of the three divisions of the trigeminal nerve. Facial sensation in the scalp and in the neck was intact. Motor function in the fifth cranial nerve was preserved. The diagnosis was paralysis of the fifth cranial nerve. A VA pulmonary evaluation in May 1997 revealed that the veteran had shortness of breath after one flight of stairs. He had dyspnea on exertion. He could lift 75 pounds, but had trouble carrying a 25 or 30 pound bag of groceries. Without carrying anything he could walk about one third of a mile slowly and an eighth of a mile quickly. For the past five years night sweats and frequent respiratory infections had been a problem. In July 1997 a VA echocardiogram revealed no evidence of pulmonary hypertension. The study was reported to be normal. In August 1998 the veteran's lung capacity was measured. VA testing included loops suggesting airflow obstruction. The interpretation was that body box lung capacity values were within normal limits. The "TLC" had increased since April 1993. A VA examination of the heart was performed in January 1999. In reporting the veteran's history the examiner noted a history of sarcoid heart disease. The examiner reviewed the veteran's EKG's and echocardiogram. The diagnosis was hypertension. Analysis. As a preliminary matter the Board noted that the veteran's claims were remanded to the RO in March 1997. In Stegall v. West, 11 Vet. App. 268 (1998) the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") held a remand by the Court or the Board of Veterans' Appeals (Board) confers on the veteran as a matter of law, the right to compliance with the remand orders. It imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. A review of the claims folder demonstrates that the RO complied with the development ordered in the remand. The veteran's claims are now ready for appellate consideration. Sarcoidosis The Board has considered the factors as enumerated in the various rating criteria for determining the current level of disability from the service-connected sarcoidosis. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). As the Board noted above, new regulations have been published for rating respiratory disorders during the pendency of the veteran's appeal. Consistent with the decision in Karnas v. Derwinski, 1 Vet. App. 308 (1991), the Board will discuss the veteran's disability with consideration of the criteria effective both prior to and on or after October 7, 1996. The RO considered application of both the new and old criteria. The RO issued the veteran appropriate statements and supplemental statements of the case which included both the old and new criteria. The Board first compared the evidence with the old criteria to determine if the veteran met the requirements for a 100 percent rating. Pulmonary function testing in June 1993 revealed only moderate airflow obstruction. There is no indication that the veteran has dyspnea at rest. He has testified and reported to examiners that he has shortness of breath with exertion, but not at rest. The evidence does not demonstrate that the veteran is totally incapacitated. A 100 percent rating under the old criteria is not warranted. 38 C.F.R. § 4.97, Diagnostic Code 6802 (1996). A 100 percent rating under new criteria is provided with sarcoidosis resulting in cor pulmonale or cardiac involvement with congestive heart failure. In October 1995 the veteran as admitted to a private hospital for treatment. Chest X- rays and an EKG were performed. The examiner noted that the EKG was suggestive of pulmonary hypertension. The examiner wrote as one of his impressions that the veteran had cor pulmonale and pulmonary hypertension as a result of long- standing sarcoidosis, Stage III. The General Rating Formula for restrictive lung disease (Diagnostic Codes 6840 through 6845) includes a 100 percent rating with cor pulmonale (right heart failure), right ventricular hypertrophy or pulmonary hypertension that is shown by echo or cardiac catheterization. A review of the October 1995 private hospital report reveals that no echocardiogram or cardiac catheterization of the veteran was performed. The Board must support its medical conclusions on the basis of independent medical evidence in the record or through adequate quotation from recognized treatises; it may not rely on its own unsubstantiated medical judgment to reject medical evidence in the record, but may reject a claimant's medical evidence only on the basis of other such independent medical evidence. See Thurber v. Brown, 5 Vet. App. 119, 122 (1993); Hatlestad v. Derwinski, 3 Vet. App. 213, 217 (1992) (Hatlestad II); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). "If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion [or] ordering a medical examination." Colvin, supra; see also 38 U.S.C.A. § 7109; 38 C.F.R. § 20.901. In March 1997 the Board remanded the veteran's claim for further examinations. This was in part an effort to determine if the veteran had a heart disability as a result of his sarcoidosis. He was examined in May 1997 and January 1999. A July 1997 echocardiogram was reported to be normal and showed no evidence of pulmonary hypertension. The suggested pulmonary hypertension noted in the October 1995 private hospital records was not confirmed by the echocardiogram in July 1997. The VA examiners in May 1997 and January 1999 did not diagnose cor pulmonale or congestive heart failure. Based on those examinations which include diagnostic testing, the Board has determined that the preponderance of the evidence demonstrates that the veteran does not have cor pulmonale or congestive heart failure due to sarcoidosis. A 100 percent rating may also be awarded when sarcoidosis is progressive with fever, night sweats, and weight loss despite treatment. In May 1997 the Chief of the Pulmonary Clinic at a VA Medical Center examined the veteran and stated that his sarcoid was "controlled" with prednisone. The evidence in the claims folder does not indicate that the veteran is losing weight. VA records in June 1997 reveal that the veteran weighed 208 pounds. On VA examination in 1993 the veteran weighed 197 1/4 pounds. In the May 1997 VA examination report it was noted that from 1975 to 1977 the veteran had stopped taking prednisone and became short of breath and had night sweats. Resumption of therapy improved his symptoms. The veteran did give a history of frequent respiratory infections and night sweats for the past 5 years. The rating criteria requires fever, night sweats and weight loss. The veteran's sarcoidosis does not produce the symptoms required for a 100 percent rating. The veteran's sarcoidosis does not warrant an increased rating under either the old or new criteria. Trigeminal Nerve The Schedule for Rating Disabilities specifically provides Diagnostic Code 8205 for rating disability of the trigeminal nerve. The veteran's impairment of the trigeminal nerve is currently rated as 10 percent disabling based on moderate incomplete paralysis. The note following Diagnostic Code 8205 states the rating should be assigned based on the relative degree of sensory manifestation or motor loss. The introductory note to 38 C.F.R. § 4.12a states that disability is to be rated in proportion to the impairment of motor, sensory or mental function. The veteran's symptoms are limited to sensory impairment. There is no indication of interference with motor function. He has hypothesis on the right side of his face. There is nothing that indicates any difficulties with speech, mastication or other functions of the facial muscles. The veteran's symptoms of the trigeminal nerve do not meet the criteria for an evaluation in excess 10 percent. ORDER An increased rating for chronic sarcoidosis is denied. An increased rating for impairment of the right trigeminal nerve is denied. Gary L. Gick Member, Board of Veterans' Appeals