Citation Nr: 1805733 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 07-06 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating higher than 10 percent for chronic bronchitis. REPRESENTATION Appellant represented by: Halmon L. Banks III, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Budd, Counsel INTRODUCTION The Veteran served on active duty from February 1989 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in July 2015. A transcript of that hearing is of record. This matter was previously remanded by the Board for additional development in December 2015 and June 2017. The Board finds there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) FINDING OF FACT The most probative evidence of functional impairment due to the Veteran's service-connected bronchitis are the results of his pulmonary function testing. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the Veteran's service-connected chronic bronchitis have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.96, 4.97, Diagnostic Code (DC) 6600 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Although the Veteran has identified private treatment records that have not been associated with the claims file, he did not respond to a June 2016 letter requesting that the Veteran provide a signed VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA). Therefore, VA has done all that it can to obtain these records, and the duty to assist has been met. Wood v Derwinski, 1 Vet. App. 190, 193 (1991) The Veteran contends that his bronchitis symptoms warrant a rating higher than 10 percent. The question before the Board is whether the Veteran's symptoms are severe enough to meet the criteria for a rating higher than 10 percent under the rating schedule. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. §1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The primary concern in a claim for an increased rating for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all claims for increase, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation 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. The Veteran's bronchitis is rated under 38 C.F.R. § 4.97, DC 6600. The rating criteria states that a 10 percent rating is assigned where a pulmonary function test (PFT) reveals a Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent predicted; 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. A 30 percent rating is warranted where testing reveals an FEV-1 of 56 to 70 percent predicted; or FEV-1/FVC of 56 to 70 percent; or DLCO (SB) is 56 to 65 percent predicted. A 60 percent rating is warranted where testing reveals a FEV-1 of 40 to 55 percent predicted; or FEV-1/FVC of 40 to 55 percent; or DLCO (SB) 40 to 55 percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is assigned where FEV-1 is less than 40 percent of predicted value; or FEV-1/FVC is less than 40 percent; or DLCO (SB) is less than 40 percent predicted; or maximum exercise capacity less than 15 ml/kg in 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. 38 C.F.R. § 4.97, DC 6600. Post-bronchodilator studies are required when PFTs are performed for disability evaluation purposes except in instances where the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done. Post-bronchodilator results are to be utilized in applying the evaluation criteria in the Rating Schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. The pre-bronchodilator values are to be used for rating purposes in those instances. 38 C.F.R. § 4.96 (d)(5). In this case, the record reflects several PFTs have been performed during the period on appeal. A July 2005 PFT showed FEV-1 of 80 percent, FEV-1/FVC of 80 percent, and DLCO of 73 percent. In April 2007, the Veteran's FEV-1 was 81 percent, his FEV-1/FVC was 79 percent, and his DLCO was 126 percent. An August 2009 PFT showed FEV-1 of 78 percent, and FEV-1/FVC of 76 percent. In March 2014, PFT results showed FEV-1 of 77 percent, FEV-1/FVC of 95 percent, and DLCO of 61 percent. A treatment note found that the reduced diffusing capacity indicated a moderate loss of functional alveolar capillary surface. The Veteran also described his symptoms in the record. A July 2005 VA examination noted that the Veteran reported he has missed two to three weeks of work because of bronchitis episodes, and that he had a mild intermittent cough that does not produce sputum the rest of the time. He has not required hospitalization for episodes of bronchitis due to upper respiratory infections in recent years. The Veteran did notice that he became short of breath when he tried to run, but could think of little else that was limited by his dyspnea. The examiner noted that the Veteran has been able to carry out his job as a carpenter without limitations due to his breathing except during the bronchitis episodes that required him to miss work. An April 2007 examination reiterated that the Veteran's symptoms included a mild nonproductive cough most of the year punctuated by intermittent episodes of actual bronchitis with productive cough, but found that the Veteran had not had such an episode since the July 2005 examination. He reported wheezing and becoming short of breath with marked exertion such as chasing his son or moving furniture, but had no shortness of breath with ordinary activities. In a March 2010 examination, the Veteran denied dyspnea with exertion, and stated there had been no periods of incapacitating episodes in the past 12 months requiring bed rest as prescribed by a physician. The March 2014 examination noted the PFT results discussed above, and stated that the Veteran's bronchitis had no impact on his ability to work. The Veteran's July 2015 hearing indicated that he cannot keep up with his son playing sports, and felt out of breath after a flight and a half of stairs or carrying groceries. He reported missing about 5 days of work because of a bronchial infection. The March 2014 PFT showing DLCO of 61 percent does not meet the criteria for a 30 percent rating although it is between 56 and 65 percent, a criteria for a higher evaluation under the applicable Diagnostic Code. In this regard, the Board notes that the March 2014 examiner specifically stated that the FEV-1/FVC levels most accurately reflect the Veteran's level of disability. The provisions of 38 C.F.R. § 4.96(d)(6) state that in the case of a disparity between different pulmonary function tests (FEV-1, FVC, etc.), so that the level of evaluation would differ depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability should be used. While the text of 38 C.F.R. § 4.96(d)(6) does not specifically list the DLCO result, the Board finds that use of "etc." is inconclusive of all types of results from pulmonary function testing, expressly indicating an intent not to exclude any result obtainable from pulmonary function testing. At no point in the record do the Veteran's PFT results show FEV-1 of 56-70 percent, FEV-1/FVC of 56-70 percent, or DLCO of 56-65 percent predicted, so as to warrant the next higher, 30 percent, evaultion. Therefore, the criteria for a rating in excess of 10 percent are not met. The Board recognizes that one of the reasons that the Veteran requests a higher rating is because of time lost from work due to episodes of active bronchitis. The Board finds that the 10 percent rating assigned appropriately encompasses this concern, as it is comparable to other ratings that cover incapacity for the amount of time specified by the Veteran. Specifically, incapacitating episodes with a duration of at least one week but less than 2 weeks in a 12-month period for intervertebral disc syndrome results in a 10 percent rating under 38 C.F.R. § 4.71a, DC 5243. While the Veteran reported 2-3 weeks of missed work in the July 2005 exam, such far exceeds the 5 days reported in the Veteran's hearing testimony. Therefore, the 10 percent rating assigned for the Veteran's bronchitis means that the Veteran is compensated for a disability that causes him to call in sick to work in a manner that is in keeping with the rest of the rating schedule. Neither the Veteran nor his representative has raised any other issue, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to a rating in excess of 10 percent for chronic bronchitis is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs