Citation Nr: 0720773 Decision Date: 07/12/07 Archive Date: 07/25/07 DOCKET NO. 05-08 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating in excess of 30 percent for bronchiecstasis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Associate Counsel INTRODUCTION The veteran served on active duty from November 1945 to May 1946. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied a rating in excess of 30 percent for bronchiecstasis. In April 2007, the veteran testified before the undersigned Veterans Law Judge a travel board hearing held at the RO. A transcript of the veteran's testimony has been associated with the claims file. FINDING OF FACT The veteran's current bronchiecstasis is manifested by a productive cough with scant sputum, without weight loss, anorexia, or hemoptysis. The forced vital expiratory volume in one second (FEV-1) is 60 percent of predicted value and the ratio of FEV-1/Forced Vital Capacity (FVC) is 100 percent of predicted value, pre-drug. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for bronchiecstasis have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.383, 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Codes 6600, 6601 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2006). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in April 2005, January 2006, and March 2006; a rating decision in May 2004; a statement of the case in February 2005; and a supplemental statement of the case in January 2006. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the September 2006 supplemental statement of the case. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. VA has also obtained medical examinations in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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. 38 C.F.R. § 4.7. 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Bronchiecstasis is evaluated under Diagnostic Code 6601. Under this diagnostic code, a 10 percent rating is warranted if the Forced Expiratory Volume in one second (FEV-1) is 71 to 80 percent of predicted value, the ratio FEV-1/ Forced Vital Capacity (FVC) is 71 to 80 percent, or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO(SB)) is 66 to 80 percent predicted. A 30 percent rating is warranted if FEV-1 is 56 to 70 percent of predicted value, or FEV-1/FVC is 56 to 70 percent, or if DLCO (SB) is 56 to 65 percent predicted. A 60 percent rating is warranted if FEV-1 is 40 to 55 percent of predicted value, FEV-1/FVC is 40 to 55 percent, DLCO (SB) is 40 to 55 percent predicted, or if maximum oxygen consumption is 15 to 20 ml/kg/min (with cardiorespiratory limit). 38 C.F.R. § 4.97, DC 6601 (2006). DC 6601 also provides that bronchiectasis may be rated according to pulmonary impairment, as for chronic bronchitis, under DC 6600. Under this diagnostic code, a 10 percent rating is warranted for symptoms of an intermittent productive cough with acute infection requiring a course of antibiotics at least twice a year. A 30 percent rating is warranted for incapacitating episodes of infection of two to four weeks total duration per year, or; daily productive cough with sputum that is at times purulent or blood-tinged and that requires prolonged (lasting four to six weeks) antibiotic usage more than twice a year. A 60 percent rating is warranted for incapacitating episodes of infection of four to six week total duration per year, or; near constant findings of cough with purulent sputum associated with anorexia, weight loss, and frank hemoptysis and requiring antibiotic use almost continuously. Incapacitating episodes are defined as episodes requiring bed rest and treatment by a physician. 38 C.F.R. § 4.97, DCs 6600, 6601 (2006). The veteran's claim for increase was received by VA on January 23, 2004. Therefore, the Board finds that only the current rating criteria are applicable. While the criteria for the evaluation of respiratory disabilities were amended, the effective date of that amendment was prior to the veteran's date of claim. 68 Fed. Reg. 51546 (Aug. 27, 2003). Therefore, the Board finds that only the current criteria are applicable in this case. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the veteran's claim for a rating in excess of 30 percent for bronchiecstasis under either diagnostic code. A private treatment record dated August 2002 shows a diagnosis of bronchiolecstasis and notes that the veteran was taking Guaifenesin as prescribed by his VA physician. In November 2002, an examination of the lungs revealed coarse breath sounds bilaterally without crackles or wheezing. In July 2004, he presented with complaints of shortness of breath and wheezing. While he reduced his amount of smoking, he continued to smoke a cigar once per week. He was taking Combivent and was given a prescription for Advair. In November 2004, he stopped using Combivent because it made him cough. However, he continued to smoke a cigar once per week. While he still complained of shortness of breath, he was breathing better. In January 2005, there was a slight increase in his shortness of breath. His condition was assessed as chronic bronchiecstasis/acute bronchitis. A VA medical record dated February 2002 shows that the veteran had mucus type production, thick at times and hard to break up. In August 2002, he complained of shortness of breath. An examination of the lungs was positive for diminished breath sounds of the bilateral bases. There were no rales, ronchi, or wheezes. He had a loose cough bilaterally that cleared with coughing. A spirometry was performed and his best reading of FEV-1 of 63 percent showed moderate obstruction. In April 2004, he underwent a VA respiratory examination. He presented with a severe cough that kept him awake at night. He was dyspneic with mild to moderate physical activity and was given antibiotics as needed. He took cough medicine and used two puffs of Combivent q.i.d. (four times per day). He did not have a fever, chills, or weight loss. The examiner noted that there were no periods of incapacitation for the last three years. The cough symptoms and dyspnea had recently worsened and interfered with his daily activities and sleep. Pulmonary testing revealed a FEV-1 of 61 percent predicted and a FEV-1/FVC of 104 percent predicted pre-drug. Post-drug readings were FEV1 of 74 percent predicted with a FEV-1/FVC of 109 percent predicted. The tests showed mild restrictive ventilatory defect. Examination of the chest revealed diminished breath sounds in the right lung base, rhonchi scattered in the middle and lower zones of the right lung without rales. His condition was diagnosed as bronchiecstasis, status post resection of the part of right lung. A VA medical record dated February 2004 notes a chronic cough and shortness of breath of bronchiecstasis. In March 2005, an examination revealed bilateral vesicular breath sounds without crackles or ronchi. The veteran underwent a second VA respiratory examination in June 2006. He complained of a worsened cough over the past two years that became more severe when laying on his left side and produced soreness on the site of the right thoracotomy. The cough was productive of scant mucopurulent sputum. His appetite was good and there was no weight loss. The examiner found no history of hemoptysis. He had dyspnea upon walking fifty yards at a normal pace or climbing one flight of stairs. The examiner reported that over the last two years, there were no periods of incapacitation due to respiratory problems. He did not use supplemental oxygen. He had a respiratory tract infection a year ago which was treated and resolved. His condition was diagnosed as bronchiecstasis, status post resection of the lower lobe of the right lung. Pulmonary testing revealed a FEV-1 of 60 percent predicted and a FEV-1/FVC of 100 percent predicted pre-drug. Post-drug readings were FEV-1 of 66 percent predicted with a FEV-1/FVC of 107 percent predicted. Pulmonary function tests showed moderate restrictive ventilatory defect with reduced FVC and reduced TLC. Examination of the chest revealed diminished excursions of the right hemithorax during respiration. Breath sounds were diminished in the right lung base, rhonchi were scattered in the right lung, and there were no rales. Diffusing capacity was normal on "DCLO" testing. A chest x-ray showed post- operative changes and scarring in the right lung base with elevation of right hemidiaphragm. At the April 2007 hearing, the veteran testified that a few years ago his cough produced a little blood, but that his cough had not been productive for "a long time." He also testified that he has not undergone any surgeries or procedures involving his lungs since the 1960's. The Board finds that a rating in excess of 30 percent for bronchiecstasis is not warranted under Diagnostic Codes 6600 or 6601. 38 C.F.R. § 4.97 (2006). The most recent pulmonary function tests performed in June 2006 show a FEV-1 of 60 percent predicted and a FEV-1/FVC of 100 percent predicted pre-drug. The competent medical evidence does not show that FEV-1 is 40 to 55 percent of predicted value, FEV-1/FVC is 40 to 55 percent, DLCO (SB) is 40 to 55 percent predicted, or maximum oxygen consumption is 15 to 20 ml/kg/min (with cardiorespiratory limit). The veteran's diffusing capacity was shown to be normal on the most recent examination. In addition, the competent medical evidence does not show evidence of incapacitating episodes due to respiratory problems during the last two years. The June 2006 VA respiratory examination was negative for weight loss and anorexia. While there is a remote history of hemoptysis, no hemoptysis is currently shown. Furthermore, the veteran recently testified that his cough is not productive. Accordingly, an evaluation in excess of 30 percent is not warranted. The Board has also considered whether the record raises the matter of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities may be made. The governing norm in an exceptional case is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this case, the regular schedular standards are not inadequate. Specifically, the competent medical evidence fails to show, and the veteran has not asserted, that he has required frequent periods of hospitalization for bronchiecstasis nor has he alleged marked interference with employment due solely to that condition. According to the June 2006 VA respiratory examination report, the veteran has been retired for more than twenty-three years. For these reasons, the Board finds that referral for consideration of the assignment of an extraschedular rating for this disability is not warranted. The Board recognizes the veteran's own contention as to the severity of the bronchiecstasis. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). As a layperson, however, the veteran is not competent to provide an opinion requiring medical knowledge, such as whether the current symptoms satisfy diagnostic criteria. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). As a result, the veteran's own assertions do not constitute competent medical evidence in support of an increased rating for bronchiecstasis. Accordingly, the Board finds that the criteria for an evaluation in excess of 30 percent for bronchiecstasis have not been met. The preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.383, 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Codes 6600, 6601 (2006). ORDER A rating in excess of 30 percent for bronchiecstasis is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs