Citation Nr: 18144691 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 09-47 526 DATE: October 25, 2018 ORDER Entitlement to a disability rating in excess of 30 percent for cystic fibrosis with asthma and pneumonia, prior to April 12, 2012, is denied. Entitlement to a disability rating of 60 percent, but no higher, for cystic fibrosis with asthma and pneumonia, is granted from April 12, 2012 to May 18, 2016. Entitlement to a disability rating in excess of 60 percent for cystic fibrosis with asthma and pneumonia, beginning May 18, 2016, is denied. Entitlement to total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to April 12, 2012, the Veteran’s cystic fibrosis with asthma and pneumonia did not result in incapacitating episodes of infection of four to six weeks total duration per year, near continuous findings of cough with purulent sputum associated with anorexia, weight loss, and frank hemoptysis requiring antibiotic use almost continuously, FEV-1 of 40 to 55 percent of that predicted, FEV-1/FVC of 40 to 55 percent of that predicted, DLCO (SB) of 40 to 55 percent of that predicted, or maximum oxygen consumption of 15 to 20 ml/kg (with cardiorespiratory limit). 2. During the period from April 12, 2012 to May 18, 2016, the Veteran’s cystic fibrosis with asthma and pneumonia resulted in maximum oxygen consumption of 15 to 20 ml/kg (with cardiorespiratory limit). 3. Beginning May 18, 2016, the Veteran’s cystic fibrosis with asthma and pneumonia did not result in incapacitating episodes of infection of at least six weeks total duration per year, FEV-1 of less than 40 percent of that predicted, FEV-1/FVC of less than 40 percent of that predicted, DLCO (SB) of less than 40 percent of that predicted, maximum oxygen consumption of less than 15 ml/kg (with cardiorespiratory limit), cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or episode(s) of acute respiratory failure; outpatient oxygen therapy was not required. 4. The evidence of record indicates the Veteran may be engaged in substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to April 12, 2012, the criteria for a rating in excess of 30 percent for cystic fibrosis with asthma and pneumonia were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.96, 4.97, Diagnostic Code2 6601, 6603 (2018). 2. For the period from April 12, 2012 to May 18, 2016, the criteria for a rating of 60 percent, but no higher, for cystic fibrosis with asthma and pneumonia were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.96, 4.97, Diagnostic Code2 6601, 6603 (2018). 3. Beginning May 18, 2016, the criteria for a rating in excess of 60 percent for cystic fibrosis with asthma and pneumonia were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.96, 4.97, Diagnostic Code2 6601, 6603 (2018). 4. The criteria for a TDIU due to service-connected disabilities are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 2003 to December 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the Veteran filed a claim for an increased rating in November 2008, less than one year after the July 2008 rating decision granting his claim for service connection for cystic fibrosis. As the appellant did not express disagreement with the July 2008 rating decision, the Board agrees with the RO's decision to construe the claim as a new claim for an increased rating rather than a notice of disagreement. In August 2010, the appellant presented testimony at a personal hearing conducted at the Detroit RO before a Decision Review Officer (DRO). A transcript of this hearing has been associated with the appellant's claims folder. A TDIU claim is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). When evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. As discussed below, the evidence of record indicates that the Veteran's service-connected disabilities interfere with his ability to work. Thus, the Board finds that a claim for a TDIU was raised by the evidence of record and is currently before the Board on appeal as part and parcel of the claim for an increased evaluation. Increased Rating for Cystic Fibrosis with Asthma and Pneumonia The Veteran’s service-connected cystic fibrosis with asthma and pneumonia has been rated under Diagnostic Codes 6601 and 6603 as 30 percent disabling prior to May 18, 2016 and as 60 percent disabling thereafter. 38 C.F.R. § 4.97, Diagnostic Codes 6601, 6603. Under Diagnostic Code 6601, a rating of 30 percent is warranted for incapacitating episodes of infection of two to four weeks total duration per year, or daily productive cough with sputum that is at times purulent or blood-tinged and that requires prolonged (lasting four to six weeks) antibiotic usage more than twice a year. A 60 percent rating is warranted for incapacitating episodes of infection of four to six weeks total duration per year, or near continuous findings of cough with purulent sputum associated with anorexia, weight loss, and frank hemoptysis requiring antibiotic use almost continuously. A 100 percent rating is warranted for incapacitating episodes of infection of at least six weeks total duration per year. Incapacitating episodes are defined as episodes requiring best rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6601. Under Diagnostic Code 6603, a 30 percent rating is warranted when the FEV-1 is 56 to 70 percent of that predicted, or; the FEV-1/FVC is 56 to 70 percent of that predicted, or; the DLCO (SB) is 56 to 65 percent of that predicted. A 60 percent rating is warranted when the FEV-1 is 40 to 55 percent of that predicted, or; FEV-1/FVC is 40 to 55 percent of that predicted, or; DLCO (SB) is 40 to 55 percent of that predicted, or; maximum oxygen consumption of 15 to 20 ml/kg (with cardiorespiratory limit). A 100 percent rating is warranted when the FEV-1 is less than 40 percent of that predicted, or; FEV-1/FVC is less than 40 percent of that predicted, or; DLCO (SB) is less than 40 percent of that predicted, or; maximum oxygen consumption of less than 15 ml/kg (with cardiorespiratory limit), or; cor pulmonale, or; right ventricular hypertrophy, or; pulmonary hypertension, or; episode(s) of acute respiratory failure, or; requires outpatient therapy. 38 C.F.R. § 4.97, Diagnostic Code 6603. Pulmonary function tests (PFT's) are required to evaluate these conditions except: (i) When the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less. If a maximum exercise capacity test is not of record, evaluate based on alternative criteria. (ii) When pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed. (iii) When there have been one or more episodes of acute respiratory failure. (iv) When outpatient oxygen therapy is required. 38 C.F.R. § 4.96 (d)(1). If the DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) test is not of record, the rater must evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96 (d)(2). When evaluating based on PFT’s, the rater must use post-bronchodilator results 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. 38 C.F.R. § 4.96 (d)(5). Prior to April 12, 2012, the Veteran’s service-connected cystic fibrosis with asthma and pneumonia did not meet the criteria for a disability rating in excess of 30 percent. Examination reports dated in December 2008 and May 2010 reflect that, while the Veteran was incapacitated for one week with each of three hospitalizations in the year prior to the May 2010 examination, he did not have four to six weeks of incapacitation as contemplated by the regulation for a 60 percent disability rating during any 12-month period prior to April 12, 2012. In addition, while the Veteran has a chronic cough, the evidence does not reflect that, prior to April 12, 2012, it was near continuous with purulent sputum associated with anorexia, weight loss, and frank hemoptysis or that it required antibiotic use almost continuously. At his December 2008 VA examination, the Veteran reported frequent coughing but that he coughed up green sputum and had hemoptysis only occasionally. The May 2010 examination reflects his reports of a productive cough with thick green sputum; however, his episodes of hemoptysis occurred every 1-2 months and the examiner noted that he did not have anorexia or weight loss. As such, for the period prior to April 12, 2012 a higher rating is not warranted under Diagnostic Code 6601. Likewise, a higher rating is not warranted under Diagnostic Code 6603 during this time. Pulmonary functions tests results (PFTs) dated in December 2008 reflect FEV-1 of 57 percent, FEV-1/FVC of 79 percent, and DLCO of 66 percent. PFTs dated in November 2009 reflect FEV-1 of 67 percent, FEV-1/FVC of 81 percent, and DLCO of 82 percent. PFTs dated in March 2010 reflect FEV-1 of 71 percent, FEV-1/FVC of 82 percent, and DCLO of 65 percent. The examiner noted that the most accurate measurement was the FEV-1/FVC percentage. PFTs dated in May 2010 show results of 73 percent for FEV-1 and 81 percent for FEV-1/FVC. As noted above, in order to warrant a higher rating under Diagnostic Code 6603 prior to April 12, 2012, the evidence would need to show the FEV-1 was 40 to 55 percent of that predicted, or; FEV-1/FVC was 40 to 55 percent of that predicted, or; DLCO (SB) was 40 to 55 percent of that predicted, or maximum oxygen consumption of 15 to 20 ml/kg (with cardiorespiratory limit). The PFTs of record prior to April 2012 do not reflect results meeting the criteria for a higher rating. The Board notes, however, that the April 12, 2012 VA examination report shows that exercise capacity testing been performed, and that the results reflected maximum oxygen consumption of 15-20 ml/kg/min (with cardiorespiratory limit). This testing result meets the criteria for a 60 percent disability rating under Diagnostic Code 6603. As such, a 60 percent rating, but no higher, is granted as of April 12, 2012. As the Veteran is now assigned a 60 percent rating as of April 12, 2012, the Board will assess whether he is entitled to a higher rating beginning April 12, 2012. As noted above, in order to warrant a rating higher than 60 percent, the evidence would need to show that the Veteran’s service-connected cystic fibrosis with pneumonia and asthma resulted in incapacitating episodes of infection of at least six weeks total duration per year, FEV-1 less than 40 percent of that predicted, FEV-1/FVC less than 40 percent of that predicted, DLCO (SB) less than 40 percent of that predicted, maximum oxygen consumption of less than 15 ml/kg (with cardiorespiratory limit), cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episode(s) of acute respiratory failure, or that it requires outpatient therapy. 38 C.F.R. § 4.97, Diagnostic Codes 6601, 6603. The April 2012 VA examiner noted that the Veteran two weeks or less of incapacitating episodes over the prior 12-month period. The May 2016 VA examiner did not indicate that the Veteran had any incapacitating episodes. As such, the Veteran does not meet the criteria for a higher rating based on incapacitating episodes under Diagnostic Code 6601. 38 C.F.R. § 4.97. PFTs conducted in May 2016 showed FEV-1 as 64% predicted and FEV-1/FVC was 100%. The examiner noted that FEV-1 test result most accurately reflected the Veteran’s level of disability, and that DLCO testing was not indicated for the Veteran’s condition. In addition, the VA examination reports dated in April 2012 and May 2016 did not reflect maximum oxygen consumption of less than 15 ml/kg (with cardiorespiratory limit), cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episode(s) of acute respiratory failure, or outpatient oxygen therapy. As such, a disability rating in excess of 60 percent since April 12, 2012 is not warranted. Entitlement to TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation due a single service-connected disability ratable at 60 percent or more, or due to two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Even when the rating percentage requirements are not met, entitlement to TDIU benefits may be nonetheless considered when the veteran is unable to secure and follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry is determining whether a TDIU is warranted is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In December 2015, the Veteran reported that he had graduated from high school. He completed trade school with a concentration in welding. 2008 records from VA Vocational Rehabilitation & Employment indicate the Veteran worked in a warehouse and was physically unable to perform the duties of his job due to the symptoms of his service-connected cystic fibrosis. At an August 2010 RO hearing, the Veteran testified that he used VA Vocational Rehabilitation & Employment benefits to attend school to train in a new field, but was unable to complete his education due to missing a significant number of classes because of symptoms of his service-connected disability. Medical evidence of record tends to support a finding that, due to his service-connected cystic fibrosis, the Veteran would not be able to obtain or maintain gainful employment consistent with his background as a welder. At his April 2012 examination, the Veteran reported that he was unemployed and that his continued symptoms of shortness of breath, cough, intermittent wheezing which interfere with his ability to work. In addition, the Veteran reported that his condition made him more susceptible to upper respiratory infections, pneumonia, and exacerbations of cystic fibrosis. The examiner opined that the Veteran’s condition would preclude him from obtaining and maintaining employment in a full-time position in a hospital or medical/health related field or the food industry, but would not inhibit a sedentary position in a part time capacity where he was not exposed to the public or food/medical products. The May 2016 examiner opined that cystic fibrosis and the side effects from it will prevent the Veteran from having a gainful occupation and that cystic fibrosis would not resolve and most likely would progress, leading to permanent disability. Unfortunately, the record of evidence is unclear as to the Veteran’s employment history and current employment status. In September 2012, the Veteran reported that he was employed as a welder. VA medical records reflect the Veteran’s report in December 2015 that he was employed as a welder for CT&S Metalworks, and had been with this employer for seven months. However, in several instances, the Veteran indicated that he was unemployed. See June 2009, April 2012, September 2012, and December 2015 VA medical records, examination reports. The Veteran was provided with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, in April 2015 and June 2016, but did not return a completed copy. A substantially complete VA Form 21-8940 is required to establish entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. It concludes with a series of sworn certification statements, and in endorsing it, the veteran attests to his employment status and signals understanding of the TDIU benefit's incompatibility with substantially gainful work. The Veteran has not provided sufficient information for the Board to grant the claim of TDIU, in spite of being specifically asked to provide this information in April 2015 and June 2016 letters when he was sent copies of VA Form 21-8940 for completion and specifically instructed to complete these forms in order for VA to determine if he qualified for a TDIU. VA's duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must cooperate in obtaining the evidence necessary to adjudicate these claims. As the Veteran has failed to provide sufficient evidence regarding his employment status, the record as it stands fails to support a finding that the Veteran’s service-connected disabilities preclude substantially gainful employment. Accordingly, the claim for a TDIU must be denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Harrigan Smith