Citation Nr: 18144340 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 02-19 655 DATE: October 24, 2018 ORDER A 100 percent rating is granted for pulmonary emphysema from October 18, 2013 to August 24, 2016. Special monthly compensation (SMC) at the housebound rate is granted from October 18, 2013 to August 24, 2016. REMANDED Entitlement to an initial rating in excess of 10 percent for pulmonary emphysema prior to October 18, 2013 is remanded. FINDINGS OF FACT 1. A record of private pulmonary function testing dated October 18, 2013 reflects that the Veteran’s pulmonary disability was then manifested by Diffusion Capacity of the Lung for Carbon Monoxide (DLCO) less than 40 percent of predicted. 2. With this decision, the Veteran now has a single service-connected disability rated total, effective October 18, 2013, with additional service-connected disabilities independently ratable at more than 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for the assignment of a 100 percent rating for pulmonary emphysema have been met since October 18, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6603 (2017). 2. The criteria for SMC at the housebound rate have been met from October 18, 2013. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1965 until his honorable discharge in July 1967. He was awarded the National Defense Service Medal and the Vietnam Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs (VA) Appeals Management Center Resource Unit (AMCRU) in Bay Pines, Florida. The AMCRU granted service connection and an initial 10 percent rating for pulmonary emphysema, effective July 17, 2001. In February 2007, the Board directed the agency of original jurisdiction (AOJ) to furnish the Veteran a statement of the case (SOC) with respect to the matter of his entitlement to an initial rating in excess of 10 percent for pulmonary emphysema, pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The AOJ issued the SOC in March 2008 and the Veteran thereafter perfected an appeal of the issue by filing a substantive appeal in April 2008. In February 2010, the Board remanded the Veteran’s claim to afford him a Board hearing on the issue. By correspondence received in March 2015, however, the Veteran indicated that no longer wanted a hearing. In August 2017, the Board remanded the Veteran’s claim for additional evidentiary development, to include an examination. The AOJ attempted to schedule the requested examination in December 2017. However, the Veteran’s wife reported that he was no longer able to leave his home to attend the examination. In February 2018, the AOJ increased the rating for pulmonary emphysema to 100 percent, effective August 25, 2016. The prior decision was otherwise confirmed and continued and the case was returned to the Board. In light of the Board’s decision granting a 100 percent rating for the Veteran’s service-connected pulmonary emphysema from October 18, 2013 to August 24, 2016, the ancillary matter of his entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) for that period must also be considered. See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). A 100 percent rating for pulmonary emphysema is granted from October 18, 2013 to August 24, 2016. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Pulmonary emphysema is rated under the criteria set forth in 38 C.F.R. § 4.97, Diagnostic Code 6603. Under that diagnostic code, a 100 percent rating is warranted when the Forced Expiratory Volume in one second (FEV-1) is less than 40 percent of the predicted value, or; the ratio of FEV-1 to Forced Vital Capacity (FVC) is less than 40 percent, or; DLCO by the Single Breath Method (SB) is less than 40 percent predicted, or; maximum exercise capacity is 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. 38 C.F.R. § 4.96, Diagnostic Code 6603. For evaluation purposes, post-bronchodilator results are used unless they are poorer than pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5). In the present case, the record reflects that the Veteran underwent pulmonary function testing on October 18, 2013 by a private provider. Post-bronchodilator FVC was 103 percent of predicted, with FEV-1 63 percent of predicted, FEV-1/FVC 61 percent of predicted, and DLCO 38 percent of predicted. Although it is not entirely clear that the reported DLCO results were post-bronchodilator, it appears likely from the overall context of the report that they were. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 4.2. Accordingly, and because the DLCO (SB) results were less than 40 percent of predicted, the evidence supports the assignment of a 100 percent rating from the date of the report. SMC at the housebound rate is granted from October 18, 2013 to August 24, 2016. In a case such as this, where the Board is granting a 100 percent rating for a single disability, and the Veteran has other compensable disabilities, the Board is required to assess whether, as a result of its decision, the Veteran has ancillary entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i). See Buie, 24 Vet. App. at 250-51; Akles v. Derwinski, 1 Vet. App. at 121. Special monthly compensation at the housebound rate is payable where a veteran has a single service-connected disability rated at 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). In this case, the record reflects, among other things, that a combined rating in excess of 60 percent has been in effect for degenerative joint and disc disease of the lumbar spine with bilateral lower extremity radiculopathy since January 2005. The ratings for those disabilities are separate and distinct from the 100 percent rating the Board is presently granting for the Veteran’s service-connected pulmonary emphysema from October 18, 2013 to August 24, 2016, and involve separate bodily systems. As such, the Veteran is entitled to SMC at the housebound rate from October 18, 2013. REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for pulmonary emphysema prior to October 18, 2013 is remanded. When the Veteran was examined for VA compensation purposes in December 2005, reference was made to results of prior pulmonary function testing conducted on April 15, 2002. The complete results of that testing are not of record. Because the full results, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). This matter is REMANDED for the following action: 1. Take appropriate action to obtain the complete results of VA pulmonary function testing conducted on April 15, 2002, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence procured, if any, should be associated with the record. If the records sought are not available, the record should be annotated to reflect that fact and the Veteran should be notified. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran should be issued a supplemental SOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Deemer, Associate Counsel