Citation Nr: 18141165 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-13 511 DATE: October 9, 2018 ORDER Entitlement to an initial compensable rating for chronic obstructive pulmonary disease (COPD) prior to July 21, 2017 is denied. Entitlement to a 100 percent disability rating for chronic obstructive pulmonary disease (COPD) since July 21, 2017 is granted. FINDINGS OF FACT 1. Prior to July 21, 2017, the Veteran’s COPD manifests as shortness of breath, and a pulmonary function test (PFT) results that most nearly approximate mild to moderate COPD. 2. Since July 21, 2017, the Veteran’s COPD has been manifested as, among other symptoms, pulmonary hypertension shown on a July 2017 echocardiogram (Echo). CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for chronic obstructive pulmonary disease prior to July 21, 2017 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6604 (2017). 2. The criteria for entitlement to a 100 percent disability rating for chronic obstructive pulmonary disease since July 21, 2017 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6604 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from November 1961 to October 1969. This case comes before the Board of Veteran’s Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). With the initial rating assigned with the award of service connection for a disability, “staged” ratings to reflect distinct periods when different levels of impairment were shown are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Diagnostic Code 6044 does not provide for a noncompensable or zero percent rating. In such cases, a noncompensable rating is assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Under Diagnostic Code 6604, 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. The Rating Schedule contains special provisions for the application of DC 6604. PFTs are required to evaluate COPD, except when certain circumstances (not present in this case) are demonstrated. 38 C.F.R. § 4.96 (d)(1). When PFTs are not consistent with clinical findings, conditions are evaluated based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. 38 C.F.R. § 4.96 (d)(3). When evaluating based on PFTs, post-bronchodilator results are to be used unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case, the pre-bronchodilator results are used for rating purposes. 38 C.F.R. § 4.96 (d)(5). When there is a disparity between the results of different PFT's (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96 (d)(6). Service connection for pulmonary restrictive disease was awarded in an October 2014 rating decision with an initial noncompensable evaluation assigned effective August 06, 2008. The Veteran contends that he is entitled to an increased rating for his COPD. He asserts that his symptoms are more severe than what the current disability evaluations reflect. 1. Prior to July 21, 2017 In March 2009, the Veteran was afforded a VA examination. The Veteran reported that he had orthopnea during the summer when the weather was hot. He indicated that he had shortness of breath after walking one city block. The Veteran had symptoms that occurred when walking up an incline, lifting anything that was heavy, and first thing in the morning. He reported that he did not have asthma attacks. The Veteran reported that he contracts infection easily from his respiratory condition which required antibiotics periodically 2 time(s) per year, each time lasting for 5 week(s). The Veteran reported that when he had an infection, and he did not require bed rest or treatment by a physician. The Veteran did not have episodes of respiratory failure which required respiration assistance from a machine. The Veteran did not receive any treatment for his condition. He did not require the usage of outpatient oxygen therapy. The Veteran reported that he was unable to speak on the telephone as fast as needed, he had to take a breath too often to complete a conversation. He reported having difficulty with cutting the grass, being around dust, being around smoke, and being around perfume as this affected his breathing. PFTs were performed and FEV-1/FVC value of 81. FEV-1 was 54 percent. The examiner did not note which test results most accurately reflect the Veteran’s level of disability. An October 2011 from Dr. Fillmore documented that the Veteran had mild COPD. A February 2012 VA treatment note, documented that the Veteran’s COPD was moderate. In February 2012, the Veteran was afforded a VA examination. The examiner indicated that the Veteran’s condition did not require the use of inhaled medication, oral bronchodilators, or antibiotics. His condition did not require outpatient oxygen therapy. The examiner indicated that FEV-1/FVC best accurately reflected the Veteran’s level of disability. The examiner indicated that the Veteran’s condition did not impact his ability to work. A PFT was performed and showed FEV-1/FVC greater than 80 percent of predicted value 89 percent. A December 2014 U.P.C. treatment note, documented that the Veteran was diagnosed with pulmonary hypertension. Upon review of the evidence of record, the Veteran’s COPD has not shown symptoms of such severity to warrant a compensable rating prior to July 17, 2017. VA examination in February 2012 with accompanying PFT is consistent with COPD that most nearly approximates a noncompensable rating. Also, a February 2012 VA treatment note indicates that the Veteran has moderate COPD. An October 2011 treatment letter indicates that the Veteran has mild COPD. VA Medical Center (VAMC) clinical records during this period show some treatment for COPD, but also consistently document the Veteran’s symptom of shortness of breath is well-controlled with medication. The February 2012 PFT shows FEV-1/FVC at 89 percent predicted post-bronchodilator. These findings are consistent with the currently assigned noncompensable evaluation under DC 6604. The Board notes that the Veteran was afforded a VA examination in March 2009. The 2009 examiner does not indicate which test results most accurately reflect the Veteran’s level of disability. As noted above, 38 C.F.R. § 4.96 (d)(6) provides that when there is a disparity between the results of different PFTs (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96 (d)(6). Here, the March 2009 PFTs findings show FEV-1/FVC value of 81 and FEV-1 is 54 percent. There is a disparity in the March 2009 PFTs between the FEV1 and the FEV1/FVC results and the examiner does not indicate which results most accurately reflect the level of disability. Thus, the Board finds that the March 2009 VA examination report is not adequate for rating purposes and has no probative value. The Board notes that the Veteran was diagnosed with pulmonary hypertension in December 2014 by his private physician. However, medical treatment records were not supported by an echocardiogram or heart catherization. Additionally, no PFTs were provided from the Veteran’s private physician. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a compensable rating. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.21. For these reasons, the Board finds that the Veteran’s COPD has not been manifested by symptomatology more nearly approximating the criteria for a compensable rating under DC 6604. Accordingly, a compensable rating prior to July 21, 2017, is not warranted. 2. Since July 21, 2017 Treatment records for P.W. Hospital indicated that the Veteran was admitted with respiratory distress with hypoxemia. A July 20, 2017 treatment note indicated that the Veteran had slightly increased pulmonary vascular congestion. On July 21, 2017 an echocardiogram (Echo) was performed and the summary indicated findings that would suggest moderate to severe pulmonary hypertension. In applying the above law to the facts of the case, the Board finds that the Veteran is entitled to a disability rating of 100 percent for his COPD from July 21, 2017. There is evidence from a July 2017 Echo showing that the Veteran has moderate to severe pulmonary hypertension. Accordingly, an increased rating of 100 percent from July 21, 2017 is warranted; and the preponderance of the evidence is against assignment of a compensable disability rating prior to July 21, 2017 for the Veteran’s service-connected COPD. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel