Citation Nr: 18141509 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 09-44 413 DATE: October 10, 2018 ORDER Entitlement to an initial rating of 60 percent for service-connected chronic obstructive pulmonary disease (COPD) with obstructive sleep apnea (OSA) prior to November 19, 2015 is granted. FINDING OF FACT Prior to November 19, 2015, the Veteran’s COPD with OSA was manifested by DLCO at 49 percent and 54 percent of predicted. CONCLUSION OF LAW Prior to November 19, 2015, the criteria for an evaluation of 60 percent, but no higher, for COPD with OSA have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.96, 4.97, Diagnostic Codes 6604, 6847 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to March 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a November 2017 decision, the Board granted a 50 percent rating prior to November 19, 2015 and a 60 percent rating thereafter for service-connected COPD with OSA. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the Court granted a June 2018 Joint Motion for Remand (Joint Motion) and partially vacated and remanded that portion of the Board’s November 2017 that denied a rating in excess of 50 percent prior to November 19, 2015 for service-connected COPD with OSA. 1. Entitlement to a rating in excess of 50 percent for service-connected COPD with OSA prior to November 19, 2015. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claim. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). The Board has considered all evidence of record as it bears on the issues before it. See 38 U.S.C. § 7104(a) (2012) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”); 38 U.S.C. § 5107(b) (“Secretary shall consider all information and lay and medical evidence of record in a case”). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s appeal. As indicated above, in a November 2017 decision, the Board granted an initial rating of 50 percent for service-connected COPD with OSA prior to November 19, 2015 and a 60 percent rating thereafter. Pursuant to a June 2018 Joint Motion, the Court vacated and remanded that portion of the November 2017 decision that denied a rating in excess of 50 percent for COPD with OSA prior to November 19, 2015. This issue has therefore been returned to the Board. Respiratory disorders are rated under 38 C.F.R. § 4.97, Diagnostic Codes 6600 through 6817 and 6822 through 6847. Pursuant to 38 C.F.R. § 4.96(a), 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 evaluation only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a). Sleep apnea syndromes are rated under Diagnostic Code (DC) 6847. 38 C.F.R. § 4.97. Under DC 6847, a 50 percent rating is warranted for the use of a breathing assistance device such as a CPAP machine. A 100 percent rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a tracheostomy. 38 C.F.R. § 4.97, DC 6847. COPD is rated under DC 6604, which indicates that a 10 percent rating is assigned for FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted. A 30 percent rating is assigned for 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. A 60 percent rating is assigned for 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 for FEV-1 less than 40 percent of 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 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. When evaluating based on PFTs, post-bronchodilator results are used in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. When there is disparity between the results of different PFT’s so that the level of evaluation would differ depending on which test result is used, the Board uses the test result that the examiner states most accurately reflects the level of disability. See 38 C.F.R. § 4.96(d)(5), (6). In the November 2017 decision, the Board determined that the Veteran’s COPD with OSA warranted a 50 percent under DC 6847 because the disability requires the use of a CPAP machine prior to November 19, 2015. However, in the June 2018 Joint Motion, the parties determined that the Board failed to provide adequate reasons and bases for finding that the Veteran’s COPD with OSA did not warrant a higher rating for the period prior to November 19, 2015. The parties agreed that the Board did not discuss a May 2013 VA examination, which noted that pulmonary function testing results from October 2012 documented a DLCO score at 54 percent of predicted. The parties also indicated that the Board failed to explain why it assigned a 60 percent rating from November 19, 2015, but not prior to that date. Pursuant to the recommendations of the Joint Motion, the Board has reviewed the evidence of record and recognizes that the Veteran was afforded a VA examination in May 2013 at which time the examiner noted that the Veteran had COPD and uses Albuterol one to two times daily. The Veteran’s COPD does not require the use of oral bronchodilators or antibiotics. A chest x-ray showed no active lung disease. The examiner detailed the results of pulmonary function testing (PFT) conducted in October 2012, which revealed a DLCO of 54 percent predicted, FVC to 90 percent of predicted, FEV-1 to 77 percent of predicted, and FEV-1/FVC to 64 percent of predicted. These results are consistent with PFT testing conducted in July 2015 and detailed in the November 2015 VA examination report, which showed a DLCO to 49 percent of predicted. The July 2015 PFT also revealed FVC to 91 percent of predicted, FEV-1 to 78 percent of predicted, and FEV-1/FVC to 64 percent of predicted. Based upon the evidence of record, (in particular, PFT findings of DLCO to 54 percent of predicted in December 2012 and 49 percent of predicted in July 2015), the Board therefore finds that a 60 percent rating is warranted from the date of service connection, December 11, 2012. Critically, a higher initial rating based upon the Veteran’s respiratory symptomatology was not warranted prior to November 19, 2015 because there was no evidence of record for that period, which demonstrated more severe respiratory symptomatology. Moreover, there is no pulmonary function testing of record showing that the Veteran meets the criteria for a rating in excess of 60 percent prior to November 19, 2015. The evidence does not show that the Veteran exhibits cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, chronic respiratory failure, episodes of acute respiratory failure, requires outpatient oxygen therapy, or requires a tracheostomy. In sum, based on the foregoing, the Board finds that a preponderance of the evidence demonstrates that an initial rating of 60 percent is warranted for COPD with OSA from the date of service connection, December 11, 2012. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). K. CONNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel