Citation Nr: 1801126	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-10 051	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an initial compensable evaluation of chronic obstructive pulmonary disease (COPD) with bronchitis (also claimed as asbestosis).

2.  Entitlement to a total disability rating based on individual unemployabiltiy (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Banks, Associate Counsel



INTRODUCTION

The Veteran had active duty from December 1973 to December 1976 and from January 1977 to March 1979.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Board notes that the issue of entitlement to TDIU has been raised by the record and formally claimed by the Veteran.  See VA Form 21-526, Veteran's Application for Compensation and/or Pension, received in January 2012; VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in March 2012.  As such, that issue is listed above, on the title page of this decision, and is addressed herein.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  See 38 U.S.C. § 7107(a)(2) (2012).  In his June 2012 VA Form 21-4138, Statement in Support of Claim, the Veteran asked that his appeal be advanced on the docket due to his homelessness.  The Veteran provided documentation to support his request, including a letter, received in May 2012, which was written by a Men's Shelter Coordinator with the Salvation Army in Amarillo, Texas, who explained that the Veteran was a client of the Salvation Army.  The Board finds that this is good or sufficient cause to advance the case on the docket; thus, the motion to advance the appeal on the Board's docket is granted.   

The issues of entitlement to an increased initial evaluation of COPD with bronchitis (also claimed as asbestosis) of greater than 10 percent and entitlement to TDIU are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).




FINDING OF FACT

The preponderance of the evidence indicates that the Veteran's COPD has been manifested by diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) of 66 to 80 percent predicted.


CONCLUSION OF LAW

The criteria for a disability rating of 10 percent for service-connected COPD have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.97, Diagnostic Codes (DCs) 6604 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

COPD is rated under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6604, which indicates that a 10 percent rating is assigned for forced expiratory volume in one second (FEV-1) of 71 to 80 percent predicted; FEV-1/forced vital capacity (FVC) of 71 to 80 percent; or DLCO (SB) of 66 to 80 percent predicted.  The Veteran was afforded a VA examination in June 2014, which revealed that his postbronchodilator DLCO was 69 percent predicted.  This second examiner opined that the Veteran's FEV-1/FVC result was the most accurate reflection of the Veteran's level of disability, but the DLCO finding still meets the criteria for a minimum compensable evaluation of 10 percent.  That rating is granted, and the question of whether an even higher evaluation is warranted is addressed in the REMAND section of this decision.  Any possible deficiencies in VA's duties to notify and assist the Veteran do not prejudice him in this limited favorable determination, and will be corrected upon remand.  





ORDER

Entitlement to an increased initial evaluation of COPD of 10 percent is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits.


REMAND

Additional development is required on several fronts.  First, the most recent VA treatment records in the Veteran's claims file are for treatment rendered nearly four years ago.  Updated medical records would be helpful in the adjudication of this claim.

Second, a further VA examination opinion for the Veteran's COPD and chronic bronchitis would also be helpful, since the examination opinions that are currently of record do not provide complete DLCO test results (in other words, pre and post-bronchodilator DLCO test results), do not provide adequate reasons as to why DLCO testing was not performed or the results were not provided, and do not address oxygen consumption/exercise capacity testing, and if applicable, why it was not performed, or whether the Veteran has suffered from cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or acute respiratory failure as a result of his COPD or chronic bronchitis.  The applicable rating criteria provide that the presence of such resultant conditions, symptoms or effects would potentially entitle the Veteran to an evaluation of greater than 10 percent for his COPD.  As such, an examination opinion providing such test results, or clearly explaining why such tests were not performed, and clearly addressing the existence or nonexistence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or acute respiratory failure would also be helpful prior to the Board's adjudication of the Veteran's claim.

Finally, the Board notes that the Veteran has claimed that he cannot work as a result of his COPD, and has filed a claim for entitlement to TDIU.  However, although the September 2012 rating decision codesheet states that entitlement to a TDIU was denied, it appears that a rating decision addressing entitlement to a TDIU was never issued.  As the Board has found this issue to be on appeal, additional notification and adjudication are required.

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).  Expedited handling is requested.)

1. Obtain copies of the complete updated VA and private records of all evaluations and treatment the Veteran received for his COPD and chronic bronchitis.  As needed, signed release forms for private records should be obtained.  All requests for records and responses must be associated with the claims folder, pursuant to the procedures outlined in 38 C.F.R. § 3.159(c).

2.  After the above has been completed, schedule the Veteran for an appropriate VA examination to determine the current nature, extent, and severity of the Veteran's service-connected COPD and chronic bronchitis.  The entire claims folder should be made available to and reviewed by the examiner.  All necessary tests should be performed, all findings should be reported in detail, and all opinions must be supported by a rationale.

The examiner is specifically requested to:

(a) perform exercise capacity testing and record the results, or, in the alternative, to explain why such testing cannot or should not be performed;

(b) perform Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) testing and record the results, or, in the alternative, to explain why such testing cannot or should not be performed;

(c) clearly note which pulmonary function test (PFT) result(s) is/are the most accurate reflection of the Veteran's current level of disability;

(d) clearly note whether the Veteran has suffered from cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure as a result of his COPD or chronic bronchitis; and

(e) clearly note whether the Veteran requires outpatient oxygen therapy as a result of his COPD or chronic bronchitis.

The appropriate Disability Benefits Questionnaire (DBQ) may be used, but the examiner must ensure that the aforementioned information is provided, with clarity, in detail, and, where applicable, with an adequate supporting rationale.

3.  After completing the above actions, and any other indicated development, the issues of entitlement to an increased initial evaluation of COPD with bronchitis (also claimed as asbestosis), of greater than 10 percent, and entitlement to a TDIU must be (re)adjudicated.  If either benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative, and after they have had an adequate opportunity to respond, the appeal must then be returned to the Board for further appellate review.

The Veteran has the right to submit additional evidence and argument on this matter.  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 2014).



______________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs