Citation Nr: 1314161 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 09-28 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 30 percent for chronic obstructive pulmonary disease (COPD) with secondary pneumothorax. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran had active military service from September 1992 to September 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In connection with his appeal the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2011. A transcript of the hearing is associated with the claims files. At the hearing, the Veteran was represented by Diane Olson, Esquire, an associate of Kenneth LaVan, Esquire, the Veteran's designated representative. The Board remanded this matter in April 2011 for additional development. The case has since been returned to the Board for further appellate action. The Board further notes that additional issues were address in a Statement of the Case issued in February 20, 2013. The record before the Board does not show that the Veteran has submitted a substantive appeal in response to the Statement of the Case. In addition, none of the issues addressed in the Statement of the Case has been certified for appellate consideration. Therefore, the Board has concluded that none of those issues is currently before the Board. FINDING OF FACT Throughout the pendency of the claim, the Veteran's Forced Expiratory Volume (FEV)-1 has been greater than 55-percent predicted, his FEV-1/Forced Vital Capacity (FVC) has been greater than 55 percent, and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO) (SB) scores have been greater than 55 percent predicted. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for COPD with secondary pneumothorax have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6604 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the RO provided the Veteran with all required notice in a letter sent in September 2007, prior to the initial adjudication of the claim. The record also reflects that the Veteran's service treatment records and all identified VA and private treatment records have been obtained. Moreover, the Veteran has been provided appropriate VA examinations, to include an August 2011 examination performed in response to the Board's remand directive. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). The RO has rated the Veteran's pulmonary disability under Diagnostic Codes 6834 and 6604. Diagnostic Code 6834 provides that histoplasmosis of the lung is rated under the General Rating Formula for Mycotic Lung Disease, which provides a 100 percent rating for chronic pulmonary mycosis with persistent fever, weight loss, night sweats, or massive hemoptysis; a 50 percent rating for chronic pulmonary mycosis requiring suppressive therapy with no more than minimal symptoms such as occasional minor hemoptysis or productive cough; a 30 percent rating for chronic pulmonary mycosis with minimal symptoms such as occasional minor hemoptysis or productive cough; and a noncompensable rating for healed and inactive mycotic lesions, asymptomatic. Diagnostic Code 6604 provides the criteria for rating chronic obstructive pulmonary disease. A 100 percent rating is warranted with FEV-1 less than 40 percent of predicted value, FEV-1/FVC less than 40 percent, DLCO (SB) less than 40-percent predicted, maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), episode(s) of acute respiratory failure, the requirement of outpatient oxygen therapy. A 60 percent rating is warranted for a FEV-1 of 40- to 55-percent predicted; FEV-1/FVC of 40 to 55 percent, or DLCO (SB) of 40- to 55-percent predicted; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). VA amended the Rating Schedule concerning respiratory conditions, effective from October 6, 2006. VA added provisions that clarify the use of PFTs in evaluating respiratory conditions. A new paragraph (d) to 38 C.F.R. § 4.96 is titled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845." In pertinent part, this regulation states that post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4) (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The noncompensable evaluation assigned for the Veteran's chronic obstructive pulmonary disease and pneumothorax was continued in a July 2000 rating decision. The current claim for an increased evaluation was received in March 2001, but was not acted upon at that time. In August 2007, the Veteran submitted another statement in which he alleged that his service-connected pulmonary disability had increased in severity. In response to the August 2007 statement, the Veteran was provided a VA examination in October 2007. At that examination, the veteran reported having frequent cold symptoms and shortness of breath when walking and running. October 2007 X-rays were normal. Pulmonary Function Test (PFT) results showed FEV1 was 98.2 percent of the predicted value post-bronchodilator. The FEV-1/FVC was 70 post-bronchodilator and DLCO was 80.8 percent of the predicted value post-bronchodilator. The interpretation indicated a mild obstructive ventilatory defect. Spirometry data was acceptable and reproducible. The diagnosis was COPD with no significant effects on occupation. The examiner said the Veteran was working on his family's farm using herbicides. The Veteran avoided walking briskly, did not run, and did not engage in sports due to his work schedule. The examiner said the Veteran did not have acute or recurrent histoplasmosis but that his mild COPD could linger due to his persistent smoking and constant exposure to smokers. In the November 2007 rating decision on appeal, the noncompensable rating for the Veteran's pulmonary disability was continued. March 2008 VA treatment records indicate wheezing in the morning. Breathing was stable and he was not using Albuterol. He smoked one pack of cigarettes per day. A December 2008 VA treatment record shows report of increasing dyspnea with exertion and chronic cough with occasional brownish sputum. The provider recommended smoking cessation. Noted was nicotine dependence and a FEV-1/FVC at 69. The Veteran had a PFT in December 2008, which is cited in the August 2011 VA examination. FEV1 was 106 percent of the predicted value post-bronchodilator. The FEV-1/FVC was 80 post-bronchodilator. DLCO scores were not provided. In a March 2009 statement, the Veteran said his COPD caused shortness of breath and chronic illness. He said he has chest colds, walking pneumonia, and lung infections requiring bed rest and antibiotics at least twice per year. He lost one job due to illness and believes that his condition would impact future employment and schooling. In a June 2009 decision, a Decision Review Officer determined that the failure to grant a 10 percent rating for the disability in a July 2000 rating decision was clear and unmistakable error. The Decision Review Officer granted a 10 percent rating for the disability from July 17, 2000. The Decision Review Officer also granted an increased rating of 30 percent from the date of receipt of the claim for increase in March 2001. Private treatment records from L.M.H. show that a December 2009 chest X-ray revealed no abnormalities of the chest. In February 2011, the Veteran testified before the Board. He said he easily became short of breath and that his respiratory problem interfered with sleep. Coughing would keep him up and he snored, which would wake him. His condition caused frequent illness which interfered with his schooling back in 1997 or 1998. He described symptoms from that period. He said current treatment included an inhaler and occasional antibiotics when fighting infections. He testified that he has constant productive cough and is fatigued. The Veteran had a VA examination in August 2011. It was noted that his treatment included an inhaled bronchodilator. The examiner noted a history of non-productive cough, productive cough, wheezing, dyspnea, and spontaneous pneumothorax. The non-productive cough was near-constant while dyspnea had onset with moderate exertion. He had one complete spontaneous pneumothorax and another at 40 percent in 1998. Also noted was a history of histoplasmosis. The examiner observed a small scar on the right lateral chest from tube placements for pneumothorax. May 2010 X-rays were normal. PFT scores from December 2008 were noted. The diagnosis was COPD unrelated to pneumothorax. The examiner stated that the condition caused increased tardiness at work and limited the Veteran to light duties. The examiner for noted that the Veteran had lack of stamina and weakness or fatigue. Any exertion caused shortness of breath. Updated PFT testing was completed in September 2011. The FEV1 was 101.1 percent of the predicted value post-bronchodilator. The FEV-1/FVC was 70. DLCO was 85.7 percent of the predicted value. The provider indicated that spirometry lung volumes and diffusing capacity were normal and that the Veteran did not have significant improvement with bronchodilator. VA treatment records on the Virtual VA show a diagnosis of COPD with acute bronchitis in October 2012. After review of the evidence of record, there is no evidence of record that would warrant a rating in excess of 30 percent for the Veteran's service-connected COPD with secondary pneumothorax. At no time has the Veteran's FEV-1 measured less than 56-percent predicted, or the FEV-1/FVC measured less than 56 percent. Available DLCO scores are also far greater than 55 percent predicted. Oxygen consumption was not provided. The Veteran argues that he is entitled to a rating under Diagnostic Code 6834, for histoplasmosis of the lung. However, none of the treatment records indicate that he has had symptomatic histoplasmosis during the pendency of his claim. While the Veteran has complained of productive cough and on one occasion, reported occasional brown sputum, the evidence does not show an active, underlying disease. At most, the Board finds that the condition would warrant a noncompensable rating for healed and inactive mycotic lesions, asymptomatic. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the Veteran's statements regarding the impact of his COPD with secondary pneumothorax on his employment and whether the claim should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2012). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and symptomatology of the claimant's disability with the established criteria provided in the rating schedule. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating under the schedule is adequate, and it is not necessary to refer the case for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, symptoms of the Veteran's COPD with secondary pneumothorax are contemplated by the criteria in the rating schedule. Therefore, referral of the claim for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted. The Board further notes that according to VA General Counsel, the question of entitlement to a total rating based on unemployability (TDIU) may be considered as a component of an appealed increased rating claim if the TDIU claim is based solely upon the disability or disabilities which are the subject of the increased rating claim. If the veteran asserts entitlement to a TDIU based in whole or in part on other service-connected disabilities which are not the subject of the appealed RO decision, the Board lacks jurisdiction over the TDIU claim except where appellate jurisdiction is assumed in order to grant a benefit, pursuant to 38 C.F.R. 19.13(a). See VAOGCPREC 6-96. The evidence does not suggest and the Veteran has not contended that his service-connected pulmonary disability is sufficient by itself to render him unemployable. Therefore, the issue of entitlement to a TDIU based on the Veteran's pulmonary disability is not before the Board. The issue of entitlement to a TDIU based on the residuals of a brain contusion is among the issues addressed in the February 2013 Statement of the Case. As discussed above, those issues are not currently before the Board. Finally, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Entitlement to a rating in excess of 30 percent for COPD with secondary pneumothorax is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs