Entitlement to a separate compensable rating for service-connected sarcoidosis is remanded.
Dr. Craig Bash has done thousands of case evaluations at the VA Hospital/regional office/BVA and court levels.
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Citation Nr: A20004732 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 190926-33113 DATE: April 7, 2020 REMANDED Entitlement to a separate compensable rating for service-connected sarcoidosis is remanded. REASONS FOR REMAND The Veteran timely appealed a September 2019 rating decision, which granted service connection for sleep apnea and provided a combined rating with the already service-connected respiratory condition of sarcoidosis pursuant to 38 C.F.R. § 4.96. The Veteran appealed seeking a separate rating for the service-connected sarcoidosis to the maximum 100 percent rating. He requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). The Veteran has not appealed the March 2019 rating decision by submitting the appropriate standardized form for notice of disagreement. While there are subsequent communications following this rating decision expressing disagreement with the assigned effective date for service connection for sarcoidosis, no such issue is in appellate status. Under the modernized appeals system, if the claimant wishes to appeal a rating decision it must be submitted on a standardized notice of disagreement form. VA will not accept as a notice of disagreement an expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result that is submitted in any other format, including on a different VA form. 38 C.F.R. § 19.21. Entitlement to a separate compensable rating for service-connected sarcoidosis is remanded. The Board finds that the AOJ committed a pre-decisional duty to assist error by failing to notify the Veteran of the unavailability of private treatment records identified by the Veteran in the November 2015 VA Form 21-4142 Authorization for Release of Information for Dr. Bush and Dr. Bash. In December 2015, VA received notice from both doctors that records were not available. Dr. Bush’s office wrote back saying that no records were found. Similarly, Dr. Bash’s office wrote back indicating that the Veteran’s records had been destroyed. The AOJ did not inform the Veteran of the unavailability of these private records consistent with VA policy, and thus the Veteran did not have an opportunity to submit such records on his own behalf. Review of the January 2016 supplemental statement of the case is also absent for notifying the Veteran of the unavailability of these private treatment records. The supplemental statement of the case erroneously referred to treatment records received from these doctors; however, what the supplemental statement of the case referenced were the independent medical evaluations performed by these doctors that the Veteran submitted. Additionally, in March 2016 the AOJ again sought records from Dr. Bash. The AOJ submitted two separate requests in April 2016 and June 2016. However, after the two attempts no notice was sent to the Veteran indicating that Dr. Bash’s records were unavailable. Such notice to the Veteran is important because he has made statements, such as in April 2019 arguing that evidence established a 100 percent rating based on Dr. Bash’s findings. See April 12, 2019 Email. Similarly, this is important because in April 2016 Dr. Bash completed a private DBQ for sleep apnea indicating that there was evidence of chronic respiratory failure with carbon dioxide retention. Under 38 C.F.R. § 4.96(a) VA must evaluate coexisting service connected respiratory disabilities covered by § 4.96(a) under the criteria enumerated in the predominant disability’s Diagnostic Code. See Urban v. Shulkin, 29 Vet. App. 82, 95 (2017). Thus, before the Board can address whether the Veteran’s respiratory disabilities warrant an increased rating, the Board must determine which of the Veteran’s coexisting respiratory disabilities is the predominant disability. 38 C.F.R. § 4.96(a); Urban, supra, at 89 90. Moreover, as to the assigned ratings, this requires evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Consequently, the Veteran needs to be provided notice of the unavailability of Dr. Bush’s and Dr. Bash’s records and provided an opportunity to submit any evidence of these records on his own behalf. On remand, the Veteran must be provided with notice that it is futile to obtain private records from Dr. Bush and Dr. Bash, and then be allowed a period of time to submit these private records on his own behalf for the record. The matters are REMANDED for the following action: On remand, the Veteran must be provided with notice that VA was unable to obtain private records from Dr. Bush and Dr. Bash, and then be allowed a period of time to submit these private records on his own behalf for the record if in his possession. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board AD 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.