Citation Nr: 1334617 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 08-33 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for chronic obstructive pulmonary disease (COPD), rated 30 percent disabling from February 22, 2006, until November 2, 2010, and 60 percent thereafter. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1974 to May 1978. This case comes to the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA), which increased the rating of the Veteran's respiratory disorder to 30 percent disabling. The case was remanded by the Board in September 2010 so the Veteran could be afforded an additional VA examination. By rating decision in February 2012, the rating for COPD was increased to 60 percent disabling. As he continues to express dissatisfaction with this rating, and it is less than the maximum under the applicable criteria, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. On examination by VA in August 2006 the Veteran's service-connected COPD was manifested by pulmonary function tests showing a FEV-1 reading of 52 percent predicted, without evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure, or a requirement for outpatient oxygen therapy. 2. Pulmonary function testing in November 2010 showed a FEV-1/FVC reading of 53 percent predicted without evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure, or a requirement for outpatient oxygen therapy. 3. Pulmonary function testing in February 2013 showed a DLCO reading of 51 percent predicted without evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure, or a requirement for outpatient oxygen therapy. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 60 percent for COPD were met between February 22, 2006, and November 2, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code (Code) 6604 (2013). 2. The criteria for an increased rating in excess of 60 percent for COPD have not been met for any period during the appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Code 6604 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A March 2006 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The Veteran has had ample opportunity to respond or supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded VA medical examinations in April 2006 and November 2010. The Board finds that the opinions obtained are adequate. The opinions were provided by a qualified medical professional and were predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). In addition, while February 2013 VA examination records were made a part of the virtual record subsequent to the last supplemental statement of the case and the Veteran has not technically waived the RO's initial consideration of this evidence, since this evidence was considered in connection with the Veteran's pending claim for a total disability rating based on individual unemployability (TDIU), the Board finds that the solicitation of a waiver of the RO's initial review of this evidence is not necessary. Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2013). Rating Laws and Regulations 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. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2013). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2013). The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require some kind of specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). COPD The Veteran contends that his service connected respiratory disability is more disabling than currently evaluated. It has been asserted that the Veteran must use oral inhalants several times per day and cannot even walk around one block without them. Service connection for interstitial pneumonitis was granted in a rating decision dated in June 1978, with a rating of 30 percent awarded under the provisions of Code 6802. The rating was reduced to zero percent by rating decision in June 1980, but increased to 10 percent under Code 6604 by rating decision in February 2004 when the disability classification was changed to restrictive lung disease. The Veteran submitted a claim of increased rating on February 22, 2006. By rating decision in August 2006, the rating was increased to 30 percent disabling under the same Code. Following additional VA compensation examination on November 2, 2010, the rating was increased again to the current 60 percent rating. Following the Veteran claim for an increased rating for his respiratory disorder, the Veteran was afforded a VA examination in April 2006. At that time, it was noted that he stated that he could not walk for more than 30 or 40 feet without stopping and could walk maybe one flight of stairs. He stated that he used his home nebulizer four times per day. He also used several medications, including an Albuterol inhaler, a Flunisolide inhaler, and Singulair tablets. He had not been hospitalized over the past year for his respiratory disorder, but had been hospitalized two years earlier. On examination, the Veteran came into the examination room with mild dyspnea. He had no use of accessory muscles of respiration. There was no peripheral cyanosis. He had a symmetrical respiratory excursion. The lungs were clear. On pulmonary function testing (PFT), two sets of results were reported. FEV-1 was 65 percent predicted and FEV-1/FVC was 119 percent predicted on one report, and FEV-1 was less than 52 percent predicted and FEV-1/FVC was 122 percent predicted. DLCO results were not reported on either results table. An examination was conducted by VA on November 2, 2010. At that time, the Veteran reported an intermittent non-productive cough, wheezing two to three times per week, and dyspnea on moderate exertion. He had clinical visits for exacerbation of his COPD several times per year and acute attacks three or more times per week. Cardiac evaluation found no evidence of congestive heart failure or pulmonary hypertension. The Veteran had normal diaphragm excursion and normal chest expansion. There were no other conditions associated with the Veteran's pulmonary disease. A chest X-ray study showed no acute cardiopulmonary disease. An EKG showed sinus bradycardia rate of 59. An echocardiogram showed mildly enlarged right ventricle, mild mitral and tricuspid regurgitation, mild to moderate aortic regurgitation, and normal left ventricle systolic function. Pulmonary function testing showed FEV-1/FVC to be 53 percent predicted and DLCO of 55 percent predicted. The examiner stated that there was no cor pulmonale, pulmonary hypertension, or right ventricular hypertrophy. The examiner explained that the echocardiogram showed a normal heart and ejection fraction between 60 and 65 percent that reflected function of a normal heart. Therefore, the Veteran's COPD was not associated with cor pulmonale, right sided heart failure, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure, or require use of oxygen therapy. On February 2013 VA examination, the Veteran was diagnosed with asthma and COPD. He used inhalational bronchodilator and anti-inflammatory medications daily. He did not require antibiotic or oxygen therapy. Pulmonary function testing showed FVC to be 57 percent predicted, FEV-1/FVC to be 85 percent predicted, and DLCO to be 51 percent predicted. The examiner stated that the DLCO reading most accurately reflected the degree of the Veteran's impairment. Diagnostic Code 6604 provides ratings for chronic bronchitis. Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 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, is rated 10 percent disabling. 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, is rated 30 percent disabling. 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), is rated 60 percent disabling. FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; 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, is rated 100 percent disabling. 38 C.F.R. § 4.97. On examination in April 2006, the Veteran underwent two pulmonary function tests, the results of which showed FEV-1 to be 65 percent predicted or 52 percent predicted. The examiner did not certify which test was more reliable. Under these circumstances, with the resolution of reasonable doubt, the Board finds that the lower number may be used for rating purposes. As such, a rating of 60 percent is shown to have been warranted as of the date of the Veteran's claim for increase in 2006. The PFT results do not demonstrate levels on which a rating in excess of 60 percent is warranted, no were such symptoms as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure, or a requirement for outpatient oxygen therapy demonstrated. As such, a rating in excess of 60 percent is not shown to be warranted. On examination by VA in November 2010, PFT showed a FEV-1/FVC value of 53 percent predicted. This is sufficient for the 60 percent rating, but does not meet the criteria for a rating in excess of 60 percent. Neither do other PFT readings such as FEV-1 or DLCO meet the criteria for a rating in excess of 60 percent. Although the examination report notes echocardiogram results demonstrating mild right ventricle enlargement, on further review, the examiner stated that no enlargement was demonstrated. No symptoms of cor pulmonale, pulmonary hypertension, episodes of acute respiratory failure, or a requirement for outpatient oxygen therapy were noted in the examination report. The examination report dated in February 2013 continues to reflect that the Veteran meets the criteria for a 60 percent, but not higher, rating, as demonstrated by a DLCO reading of 51 percent predicted, without meeting any of the criteria for a rating in excess of 60 percent. Again, there was no evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure, or a requirement for outpatient oxygen therapy. As such, a rating in excess of 60 percent is not shown to be warranted at any time during the appeal. Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is considered to be contemplated by the rating schedule. The Veteran's respiratory disability directly corresponds to the schedular criteria for the 60 percent evaluation using each measurement of PFT found in Code 6604. For this reason, the Board finds that the assigned schedular rating is adequate to rate the Veteran's COPD, and no referral for an extraschedular rating is required. Finally, while the Veteran is not employed, a total rating based on individual unemployability (TDIU) was denied by an August 2013 rating decision and since the one year time period has not yet run, it is still in pending status. Consequently, under these circumstances the Board will not simultaneously consider an implied claim for TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An increased rating of 60 percent for COPD from February 22, 2006, until November 2, 2010 is granted, subject to the statues and regulations governing the payment of monetary benefits. An increased rating in excess of 60 percent for COPD is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs