Citation Nr: 0705567 Decision Date: 02/27/07 Archive Date: 03/05/07 DOCKET NO. 05-03 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable evaluation for bronchitis. REPRESENTATION Appellant represented by: Brooks S. McDaniel, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from March 1971 to August 1974. This appeal arises from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Subsequently, the RO in an April 2006 rating decision granted service connection for post-traumatic stress disorder and a total disability rating based on individual unemployability due to service-connected disability. The only issue currently for appellate consideration is a compensable rating for bronchitis. FINDINGS OF FACT 1. A VA pulmonary function test (PFT) performed in December 2003 indicated that after post bronchodilators were administered the following values were recorded: a Forced Expiratory Volume in one second (FEV-1) of 100 percent predicted, FEV-1/Forced Vital Capacity (FVC) of 111 percent predicted. No Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) was reported. 2. An April 2006 VA PFT indicated that after post bronchodilators were administered the following values were recorded: a FEV-1 of 106.9 percent of predicted, and DLCO (SB) of 103.4 percent of predicted value. CONCLUSION OF LAW The criteria for a compensable rating for bronchitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6600 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board must first address VA's duty to notify and assist claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The Board of Veterans' Appeals (Board) in an April 2003 decision denied a compensable rating for bronchitis. In July 2003, the RO sent the veteran a letter which explained that the evidence must show the veteran's bronchitis had gotten worse. As the rating criteria for evaluating bronchitis were set out in the April 2003 Board decision, the veteran and his agent have been fully informed of the rating criteria and of the evidence necessary to support a compensable evaluation. The veteran in his correspondence has clearly indicated he understands that ratings of service-connected bronchitis are based on findings on PFTs. Short Bear v. Nicholson, 19 Vet. App. 341 (2005)(per curiam). The veteran's VA records were obtained and he was afforded VA examinations which included PFT. The veteran has not identified any other records of treatment for bronchitis. The veteran appeared and gave testimony before a Decision Review Officer at the RO in May 2005. A November 2004 statement of the case and a June 2006 supplemental statement of the case were issued to the veteran. The veteran was kept informed of the status of his case through correspondence from the RO dated in October 2003, February 2006 and November 2006. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that VCAA notice of requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. In August 2006, the RO sent the veteran a letter notifying him of the criteria for assigning effective dates. The Board has concluded that, in the circumstances of this case, any additional development or notification would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the veteran. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Relevant Laws and Regulations: Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2005). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2006). Chronic bronchitis is evaluated under Diagnostic Code 6600 and provides as follows: Bronchitis, chronic: Rati ng FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (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 100 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) 60 FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted 30 FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted 10 The American Lung Association/American Thoracic Society Component Committee on Disability Criteria recommends testing for pulmonary function after optimum therapy. The results of such tests reflect the best possible functioning of an individual and are the figures used as the standard basis of comparison of pulmonary function. Using this standard testing method assures consistent evaluations. See 61 Fed. Reg. 46,723 (Sept. 5, 1996). Factual Background and Analysis. The Board denied a compensable rating for bronchitis in an April 2003 rating decision. The veteran then filed another claim for an increased rating for his service-connected bronchitis. The Schedule for Rating Disabilities provides that disability due to bronchitis is rated based on the results of pulmonary function testing (PFT). For that reason the Board has limited the facts of his case to the results of the PFT performed during the rating period. A VA pulmonary function test (PFT) performed in December 2003 indicated that after post bronchodilators were administered the veteran exhibited a FEV-1 of 100 percent predicted, and FEV-1/FVC of 111 percent predicted. No DLCO (SB) was reported. The interpretation was suboptimal effort. A moderate restrictive pattern with bronchodilator response suggestive of an obstructive element was revealed. An April 2006 VA PFT indicated that after post bronchodilators were administered the veteran exhibited a FEV-1 of 106.9 percent of predicted, no FEV-1/FVC predicted percentage was recorded, and DLCO (SB) of 103.4 percent of predicted value. The interpretation was that the spirometry was normal. Improvement after bronchodilators suggested a reversible airway disease. The results of the PFT do not meet the criteria of FEV-1 of 71 to 80 percent, or FEV1-1FVC of 71 to 80 percent, or a DLCO of 66 to 80 percent which is the criteria for a 10 percent rating for bronchitis. 38 C.F.R. § 4.97, Diagnostic Code 6600 (2006). A compensable rating for bronchitis is not warranted. ORDER A compensable rating for service-connected bronchitis is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs