Citation Nr: 1806108 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 16-15 048A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea, to include as due to idiopathic pulmonary fibrosis. 2. Entitlement to an initial compensable rating for idiopathic pulmonary fibrosis associated with service-connected pleurisy, tuberculosis (inactive). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD T. Monrose, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1954 to November 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which in part denied service connection for obstructive sleep apnea and granted a noncompensable rating for idiopathic pulmonary fibrosis. The Veteran submitted a Notice of Disagreement (NOD) in March 2015; a Statement of the Case (SOC) was issued in March 2016; and a VA form 9 was filed in April 2016. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The issue of service connection for obstructive sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT Pulmonary function testing shows that the Veteran's Forced Expiratory Volume in one second to Forced Vital Capacity was 120 percent. CONCLUSION OF LAW The criteria for an initial compensable rating for idiopathic pulmonary fibrosis have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Code 6845 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Neither the Veteran nor the representative, in this case, has referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) cert. denied, 137 S. Ct. 33 (2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Increased rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Idiopathic pulmonary fibrosis The Veteran contends that his idiopathic pulmonary fibrosis warrants a compensable rating. Respiratory disorders are rated under Diagnostic Codes (DC) 6600 through 6817 and 6822 through 6847. Ratings under those diagnostic codes will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher rating only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a) (2017). By way of background, the RO granted service connection for pulmonary fibrosis in September 2014 at zero percent under DC 6845. Under DC 6845, a 10 percent rating requires Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted. 38 C.F.R. § 4.97, DC 6845 (2017). A 30 percent rating requires FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) of 56 to 65 percent predicted. Id. A 60 percent rating requires 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). Id. A 100 percent rating requires FEV-1 less than 40 percent predicted, 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 cardiorespiratory 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. Id. Notes to the General Rating Formula for Restrictive Lung Disease provide further rating guidance. Note (1) provides that a 100-percent rating shall be assigned for pleurisy with empyema, with or without pleurocutaneous fistula, until resolved. Note (2) provides that, following episodes of total spontaneous pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall continue for three months from the first day of the month after hospital discharge. Note (3) provides that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion shall be rated at least 20-percent disabling. Disabling injuries of shoulder girdle muscles (Groups I to IV) shall be separately rated and combined with ratings for respiratory involvement. Involvement of Muscle Group XXI (Diagnostic Code 5321), however, will not be separately rated. 38 C.F.R. § 4.97 (2017). The post-bronchodilator findings for pulmonary function tests (PFT) are the standard in pulmonary assessment. See 38 C.F.R. § 4.96(d)(5) (2017). However, if the post-bronchodilator results are poorer than the pre-bronchodilator results, then the pre-bronchodilator results are used for rating purposes. Id. Also, when there is a disparity between the results of different PFTs (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 for evaluation. See 38 C.F.R. § 4.96(d)(6) (2017). During a May 2010 examination with a private clinician, the Veteran presented with a persistent cough. A computerized tomography (CT) scan revealed the presence of a chronic pulmonary interstitial lung disease which was diagnosed as idiopathic pulmonary fibrosis, as well as an incidental finding of bilateral nephrolithiasis and bilateral multiple hypodense renal lesions. The Veteran was afforded another CT scan with a private clinician in March 2014, which showed mild to moderate interstitial lung disease, as well as traction bronchiectasis predominately towards the lower lobes bilaterally. In addition, the examiner found that there was a generalized interstitial pulmonary pattern with peripheral reticulations and interlobar and interlobular septal thickening. In June 2015, a lung examination showed that the Veteran had minimal bilateral basilar crackles during an outpatient medical appointment at the San Juan VA Medical Center (VAMC). Based on a review of the evidence, the Board concludes that a noncompensable rating is warranted throughout this appeal. As noted above, a 10 percent rating requires FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) of 66 to 80 percent predicted. In an August 2014 VA examination, the Veteran was afforded a PFT, and it showed an FEV-1 of 102 percent of predicted value, a FEV-1/FVC of 120 percent, and a DLCO (SB) of 51 percent of predicted value. The examiner indicated that the FEV-1/FVC test result most accurately reflects the level of the Veteran's disability. The Veteran's FEV-1/FVC of 120 percent does not warrant a compensable rating. Indeed, although the Veteran uses the CPAP as a form of oxygen therapy, it is only required for his obstructive sleep apnea and not his idiopathic pulmonary fibrosis. See August 2017 San Juan VAMC outpatient medical records and August 2014 VA examination. Therefore, in light of the above, the Board concludes that an initial compensable rating is not warranted throughout this appeal for the Veteran's idiopathic pulmonary fibrosis. ORDER Entitlement to an initial compensable rating for idiopathic pulmonary fibrosis associated with service-connected pleurisy, tuberculosis (inactive) is denied. REMAND Although the Board sincerely regrets additional delay, a remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran's appeal, so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Obstructive sleep apnea The Veteran contends that he is entitled to service connection for obstructive sleep disorder including as secondary to the service-connected idiopathic pulmonary fibrosis. The information of record reveals that in April 2016 the Veteran was provided a VA sleep apnea examination to determine if the Veteran had an obstructive sleep apnea that was secondary to his service-connected idiopathic pulmonary fibrosis. Upon examination, the examiner determined that the Veteran's obstructive sleep apnea was not proximately due to his service-connected idiopathic pulmonary fibrosis. While the examiner provided a medical opinion that addressed the matter of secondary service connection, in general, the examiner did not specifically address the issue of aggravation on a secondary basis. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (noting that the findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). For this reason, the April 2016 VA examination report needs additional clarification and must be returned for further medical guidance by a VA medical professional regarding whether the obstructive sleep apnea was aggravated by the idiopathic pulmonary fibrosis. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Please refer the Veteran's entire claims to a medical professional of appropriate expertise for an addendum opinion to the April 2016 VA examination. If the medical professional determines that an in-person examination of the Veteran is necessary, schedule the Veteran for a VA examination as to the etiology of obstructive sleep apnea. The contents of the electronic claim files (in VBMS and Virtual VA), to include a copy of this Remand, are to be made available to the designated examiner for review. The examiner is to note in the medical report that this action has been accomplished. All tests and studies, as well as the clinical findings contained therein, should be reported in detail. The examiner is asked to provide an opinion addressing the following question: a. Is it at least as likely as not (50 percent or greater probability) that any obstructive sleep apnea has permanently progressed at an abnormally high rate (aggravated) due to or as the result of his service-connected idiopathic pulmonary fibrosis? In making this above assessment, the medical professional should discuss whether there is a medically sound basis to attribute any obstructive sleep apnea that the Veteran now has, to the Veteran's service-connected idiopathic pulmonary fibrosis. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical sciences that apply to this case, including the use of any medical literature, which may reasonably make clear the medical guidance in the study of this case. 2. After the development above has completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and re-adjudicate the issue of service connection for obstructive sleep apnea, to include on a secondary basis. If determination remains adverse to the Veteran, the AOJ should furnish an appropriate supplemental statement of the case and afford the Veteran and his/her representative the opportunity to respond. The case should be returned to the Board, if in order, for further review. 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 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. §§ 5109B, 7112 (West 2012). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs