Citation Nr: 1028512 Decision Date: 07/30/10 Archive Date: 08/10/10 DOCKET NO. 07-31 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an increased evaluation in excess of 30 percent for chronic obstructive lung disease with history of asthma from January 31, 2006 to January 31, 2007. 2. Entitlement to an increased evaluation in excess of 30 percent for chronic obstructive lung disease with history of asthma beginning February 1, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H.J. Baucom INTRODUCTION The Veteran had active service from June 1954 to December 1977. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Albuquerque, New Mexico. VA treatment records show that on January 31, 2006, the attending physician found the Veteran to require home oxygen, which is an informal claim for a worsening of the Veteran's disability. 38 C.F.R. § 3.157. A formal claim was filed in March 2006. The effective date of the Veteran's claim is January 31, 2006. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of increased evaluation for chronic obstructive lung disease with history of asthma beginning February 1, 2007, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's chronic obstructive lung disease with history of asthma required outpatient oxygen therapy from January 31, 2006 to January 31, 2007. CONCLUSION OF LAW The criteria for the assignment of a disability evaluation of 100 percent for chronic obstructive lung disease with history of asthma from January 31, 2006 to January 31, 2007 has been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 6603 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran. The Veteran seeks an increased evaluation for his chronic obstructive lung disease with history of asthma. He contends that his condition has gotten worse, and reported that he is on home oxygen. The Veteran was initially granted service connection for chronic obstructive lung disease with a 10 percent evaluation from January 1978. The evaluation was increased to 30 percent beginning in February 2004. The 30 percent evaluation was continued in the August 2006 rating decision on appeal. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations should 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. The rating schedule also provides that when an unlisted disability is encountered, it will be 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. 38 C.F.R. § 4.20. In cases 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. The rating formula for Diagnostic Code 6603 provides an evaluation of 100 percent for a 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. On January 31, 2006 the VA attending physician found the Veteran to require home oxygen. The record indicates that the Veteran's oxygen prescription was set to expire on January 31, 2007. On January 24, 2007 an evaluation for continued oxygen was conducted and there is no indication that it was renewed. A 100 percent evaluation is warranted for the time period from January 31, 2006 to January 31, 2007 based on the Veteran's required use of outpatient oxygen. 38 C.F.R. § 4.97 Diagnostic Code 6603. ORDER Entitlement to a 100 percent evaluation for chronic obstructive lung disease with history of asthma from January 31, 2006 to January 31, 2007 is granted. REMAND The Veteran seeks an increased evaluation for his chronic obstructive lung disease with history of asthma. The Veteran discontinued outpatient oxygen therapy in January 2007. The current level of the Veteran's disability is not discernable from the record as the most recent examination of record was a VA examination in August 2007. It is also unclear whether all the VA and private treatment records from January 2007 are part of the record. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2007). Expedited handling is requested.) 1. Obtain and associate with the claim file all identified private treatment records for the Veteran's chronic obstructive lung disease. 2. Obtain and associate with the claim file all available VA medical records concerning treatment received by the Veteran for his chronic obstructive lung disease, including any pulmonary function tests performed by outside VA sources, not already associated with the claims file. 3. Following completion of the development requested, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), and an appropriate period of time allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs