Citation Nr: 1640262 Decision Date: 10/07/16 Archive Date: 10/19/16 DOCKET NO. 07-06 542A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a disability evaluation in excess of 30 percent for bronchiectasis with drug dependence prior to August 5, 2013. 2. Entitlement to a disability evaluation in excess of 60 percent for bronchiectasis with drug dependence from August 5, 2013. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran had active service from June 1963 to January 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida, prepared in May 2007 and issued to the Veteran in June 2007. The claim was previously remanded by the Board in February 2009 and August 2010 for additional evidentiary development. In a September 2013 rating decision, the RO assigned a 60 percent rating for the Veteran's bronchiectasis with drug dependence effective August 5, 2013. As the Veteran has not expressed satisfaction with the ratings assigned for any of the periods on appeal, the issues have been characterized to reflect that "staged" ratings are assigned, and that each stage remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to a disability evaluation in excess of 60 percent for bronchiectasis with drug dependence from August 5, 2013 is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT Prior to August 5, 2013, the Veteran's bronchiectasis was not manifested by incapacitating episodes of 4 weeks or more total duration per year, the need for near constant antibiotic use, forced expiratory volume in one second (FEV-1) of 55 percent or less, forced expiratory volume in one second to forced vital capacity ratio (FEV-1/FVC) of 55 percent or less, diffusion capacity of carbon monoxide (DLCO) of 55 percent or less or maximum oxygen consumption of 20 ml/kg/min (with cardiorespiratory limit). CONCLUSION OF LAW The criteria for a rating in excess of 30 percent, prior to August 5, 2013, for bronchiectasis is not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.97, Diagnostic Code (DC) 6600, 6601 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veteran's Claims Assistance Act of 2000 (VCAA) 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, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). A letter sent to the Veteran in December 2006 provided compliant notice. Regarding the duty to assist, all relevant evidence necessary for an equitable resolution of the issues on appeal have been identified and obtained, to the extent possible. The evidence of record includes service treatment records, Social Security Administration records, reports of VA examinations, VA treatment records, and the Veteran's own lay statements. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Therefore, the Board finds that VA has satisfied its duty to assist in this regard The Board notes that although it is remanding the case back to the RO for additional development in connection with the Veteran's increased rating claim for the period from August 5, 2013, the record is complete with respect to his increased rating claim for the periods prior to August 5, 2013. Consequently, the development the Board is requesting is not pertinent to his rating assignments prior to August 5, 2013. The Veteran was afforded VA examinations in March 2007 and August 2013. The Board finds that the examinations were adequate because, as will be shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and they describe the claimed disabilities in sufficient detail to allow the Board to make a fully informed determination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that VA must provide an examination that is adequate for rating purposes). In February 2009 and August 2010, the Board remanded the claim for additional evidentiary development. The Board finds that the RO substantially complied with the remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. General Legal Principles 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 this appeal. 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) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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; 38 C.F.R. § 4.1. The assignment of a particular Diagnostic Code depends wholly on the fact of the particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's bronchiectasis is currently rated under DC 6601. Under DC 6601, a 30 percent evaluation is assigned for incapacitating episodes of infection of two to four weeks total duration per year, or; a 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 per year. A 60 percent evaluation is assigned for incapacitating episodes of infection of four to six weeks total duration per year, or; near constant findings of cough with purulent sputum associated with anorexia, weight loss, and frank hemoptysis and requiring antibiotic usage almost continuously. A 100 percent evaluation is assigned for incapacitating episodes of infection lasting at least 6 weeks total duration per year. 38 C.F.R. § 4.97. A Note following DC Code 6601 indicates that an incapacitating episode is one that requires bedrest and treatment by a physician. Bronchiectasis may alternately be rated according to pulmonary impairment or as for chronic bronchitis under DC 6600. See 38 C.F.R. § 4.97, DC 6600. Under Diagnostic Code 6600 (and 6601), a 30 percent evaluation is assigned for FEV-1 of 56 to 70 percent predicted, or; FEV-1/Forced Vital Capacity of 56 to 70 percent, or; DLCO (SB) 56 to 65 percent predicted. A 60 percent evaluation is assigned for 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). A 100 percent evaluation is assigned for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DCLO (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; required outpatient oxygen therapy. Pulmonary function tests (PFTs) are required to evaluate a disability under Diagnostic Codes 6600 and 6602, unless (i) the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less, (ii) pulmonary hypertension, cor pulmonale, or right ventricular hypertrophy has been diagnosed, (iii) there have been one or more episodes of acute respiratory failure, or (iv) outpatient oxygen therapy is required. 38 C.F.R. § 4.96(d). If the Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) test is not of record, evaluation can be based on alternative criteria as long as the examiner states why the test would not have been useful or valid in a particular case. Id. When evaluating a disability based on PFTs, post-bronchodilator results are used, unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, the pre-bronchodilator results are used to determine the disability rating. Id. at (d)(5). When there is a disparity between the results of different PFTs, so that the level of evaluation would differ depending on which result is used, the test result that the examiner states most accurately reflects the level of disability is used to evaluate for rating purposes. Id. at (d)(6). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran asserts that his bronchiectasis with drug dependence is more severe than reflected by his 30 percent rating prior to August 5, 2015. Based on a sympathetic review of the evidence, the Board finds that the preponderance of the evidence indicates that the Veteran is not entitled to a rating in excess of 30 percent prior to August 5, 2015. The Veteran underwent a VA respiratory examination in March 2007. The Veteran reported that he did not use oral steroids, parenteral steroids, antibiotics, or immunosuppressives. The Veteran reported a history of hospitalization for problems breathing and low oxygen saturation. The Veteran reported a history of constant or near constant productive cough with occasionally purulent sputum. The Veteran reported no history of hemoptysis. He reported wheezing once or several times daily. He reported occasional dyspnea at rest and with mild exertion. He reported experiencing dyspnea frequently with moderate or severe exhaustion. The Veteran reported a history of anorexia. The Veteran reported no history of chest pain, swelling, respiratory failure, or fever. The Veteran reported that there were no periods of incapacitation. On observation, the examiner noted normal heart sounds and no venous congestion or edema. The examiner noted decreased breath sounds, and dyspnea on moderate exertion. The description of the diaphragm excursion and chest expansion were normal. There was no chest wall scarring or deformity of the chest wall. The examiner noted there were no significant signs of weight loss or malnutrition. Based on the Pulmonary Function Test (PFT), the examiner found no obstructive changes. The Veteran had normal lung volumes and diffusion capacity. The examiner found that there was some mild improvement in the Veteran's condition when compared to the March 2005 pulmonary function test. As the Board noted in its March 2007 remand, the results of the Veteran's March 2007 pulmonary function tests were not listed in such a way as to be readable by a non-medically trained individual. Therefore, an addendum to the March 2007 examination was requested in order to precisely list what the values were for the Veteran's FEV-1, FEV-1/FVC, DLCO (SB), and oxygen consumption tests in order to adequately rate his disability. The December 2009 addendum consisted of the full results and interpretation of the Veteran's March 2007 pulmonary function test and reported the following results: a FEV-1 of 107 percent predicted; and DLCO (SB) of 97 percent predicted. The examiner noted that there is a minimal obstructive lung defect, which the airway obstruction is confirmed by the decreased in flow rate at 25 percent, 50 percent, and 75 percent of the flow volume curve. Further the lung volumes were within normal limits and the diffusion capacity was within normal limits. The Veteran's outpatient treatment records also include the results of his PFTs. A June 2010 PFT showed FEV1/FVC at 74 percent predicted and DLCO of 88 percent. A May 2012 PFT showed FEV1/FVC at 74 percent predicted and DLCO as normal. Based on a July 2013 PFT, the medical service provider indicated that spirometry showed irregular FV loop with normal predicted FEV1 and FVC, lung volumes were normal, and diffusing capacity was preserved. In a June 2010 statement, the Veteran reported being on continuous antibiotics throughout the year, suffering from episodes of infection approximately 26 weeks per year, and being "down and incapacitated" most of the time. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the Veteran's VA treatment records show treatment for infections of chronic inflammation associated bronchiectasis but prior to August 5, 2013, his treatment records do not show that his episodes occur at the frequency required to warrant a rating in excess of 30 percent. The Veteran's outpatient treatment records also do not show that he required antibiotic usage almost continuously. The Veteran's outpatient treatment records also do not note findings of incapacitating episodes within the meaning of DC 6601. Furthermore, in a June 2012 outpatient treatment note the Veteran complained of worsening of chronic purulent cough with malodorous smell but denied unintentional weight loss and anorexia. The Veteran was afforded a VA examination in August 2013. The examination report indicates that the Veteran's respiratory condition does not require use of an oral or parenteral corticosteroid. However, the Veteran's condition does require use of inhalational bronchodilator therapy and inhalational anti-inflammatory medication on a daily basis. The Veteran's bronchiectasis did not require use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran's bronchiectasis caused productive cough daily with near constant purulent sputum. The Veteran reported 2 infections requiring prolonged course of antibiotics in the prior 12 months. The Veteran also reported anorexia and weight loss as a result of his bronchiectasis. The examiner noted that the Veteran's current weight was 15 pounds less than his baseline weight. The Veteran's PFT reported the following results: FEV-1 of 120 predicted; and FVC of 119 percent predicted. The August 2013 VA examination shows a worsening of the Veteran's symptoms based on anorexia, daily productive cough, and weight loss. Thus, the Board finds that August 5, 2013 is the earliest date upon which it is factually ascertainable that the Veteran experienced a worsening of symptoms. Prior to August 5, 2013, considering Code 6601, the medical evidence does not show that the Veteran had actual incapacitating episodes of 4 or more week's duration. He was also not shown to have bronchiectasis symptomatology that required antibiotic usage almost continuously. He was prescribed antibiotics during this time frame. However, there is no indication that his bronchiectasis required almost continuous antibiotic use. Thus, prior to August 5, 2013, a rating in excess of 30 percent is not warranted under Diagnostic Code 6601. 38 C.F.R. § 4.97. Considering Codes 6600, prior to August 5, 2013, there are simply no pulmonary function testing findings showing FEV-1 of 55-percent or less predicted; FEV-1/FVC of 55 percent or less predicted, or; DLCO (SB) of 55-percent predicted, or; maximum oxygen consumption of 20 ml/kg/min or less (with cardiorespiratory limit). Consequently, a rating in excess of 30 percent is also not warranted under any Diagnostic Code. Accordingly, considering all of the evidence, there is no schedular basis for assigning a rating in excess of 30 percent for the service connected respiratory disability prior to August 5, 2013. Other Considerations The above determination is based on consideration of the applicable provisions of VA's rating schedule. In particular, the Board notes that the VA examination reports describe the effects of the Veteran's bronchiectasis has on his daily life. The Board has also considered whether referral for extraschedular consideration is suggested by the record. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (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 veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. See also 38 C.F.R. § 3.321(b)(1). With respect to the first prong of Thun, the Veteran reports that his bronchiectasis causes daily productive cough with malodorous sputum, anorexia, chronic infections, fatigue and anorexia. See August 2013 VA Examination Report. The Veteran has not described any unusual or exceptional features associated with bronchiectasis, or described how his bronchiectasis impacts him in an unusual or exceptional manner. As such, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and the rating schedule is adequate to evaluate his bronchiectasis. Therefore, the Board need not proceed to consider the second factor, i.e., whether there are attendant related factors such as marked interference with employment or frequent periods of hospitalization. The criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Additionally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fail to capture all the service-connected disabilities experienced. However, in this case, there are no additional symptoms that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Thus, referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Finally, the record shows that the Veteran has asserted that he is unemployable due to his service-connected bronchiectasis and other service-connected disabilities and filed a TDIU claim. In a November 2015 rating decision, the RO denied the Veteran's TDIU claim. As the Veteran has not filed a notice of disagreement, his TDIU claim is not before the Board. Therefore, resolving all doubt in the Veteran's favor, the Board finds that entitlement rating in excess of 30 percent prior to August 5, 2013 for bronchiectasis is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a disability evaluation in excess of 30 percent for bronchiectasis with drug dependence, prior to August 5, 2013, is denied. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. In a January 2015 letter, the Veteran's wife reported a worsening of the Veteran's symptoms. Specifically, she indicated that she and the Veteran relocated to Meadow Vista, California after spending two months in Florida with family and that the cold in Northern California has impacted the Veteran's health. Similarly, an October 2015 VA outpatient treatment note indicates that the Veteran sought treatment for change in sputum quality and weakness. The Veteran's wife reported a change in sputum color. The medical indicates that the Veteran was not reporting overt flare symptoms but wife does endorse that he has slight change in sputum color. She describes his fatigue, weakness, and unwillingness to eat. The medical service provider indicated that the Veteran may have an occult infection in the chest though the chest x-ray was unremarkable. The Veteran prescribed 14 days of antibiotics. The medical service provider further notes that the Veteran has recurrent chest infections. As the lay and medical evidence of record suggests a worsening of symptoms since the August 2013 VA examination, the Board finds that a current examination is necessary. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old); see also Green, 1 Vet. App. at 124. In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). Furthermore, the most recent VA treatment records associated with the claims file are from October 2015. VA treatment records and any non-VA treatment records prepared since October 2015 should be obtained and incorporated into the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain copies of the Veteran's VA Medical Center (VAMC) treatment records since October 2015. The Veteran should also be contacted and provided the opportunity to submit any other relevant evidence he has in support of his claim. Once these records are obtained, they should be incorporated into the Veteran's claims file. 2. The Veteran should be afforded the opportunity to identify any non-VA treatment of bronchiectasis. The Veteran should be advised that alternative records, such as pharmacy records of medications dispensed, may assist him to substantiate his claim. 3. Once the above steps have been completed, the RO should schedule the Veteran for a VA examination before an appropriate specialist(s) to determine the current level of severity of his service-connected lung disability. The Veteran's claims file and a copy of this remand should be provided to the examiner, and the examination report should indicate review of said materials. The examiner is asked to examine the Veteran and indicate all symptomatology associated with the Veteran's service-connected lung disability. Specifically, the examiner is asked to indicate whether the Veteran has suffered from any incapacitating episodes. A note to Diagnostic Code 6601 defines an incapacitating episode as one that requires bed rest and treatment by a physician. 38 C.F.R. §4.97. If so, the examiner should indicate how many weeks per year these occur. The examiner should also describe the frequency of the Veteran's antibiotic usage and cough, and indicate whether the Veteran suffers from anorexia, weight loss, or frank hemoptysis. Finally, pulmonary function testing (PFT) must be performed. The examiner should note the percent predicted value for FEV-1, FEV-1/FVC, and DLCO (SB). A copy of the PFT report should be included in the examination report. A complete rationale must be provided for all opinions offered. The Veteran's claim file (to include this decision) must be reviewed by the examiner in conjunction with the examination. The examiner should cite to the medical and lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the examiner must explain why the opinion sought cannot be offered without resort to mere speculation. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, re-adjudicate the Veteran's claim. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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 2014). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs