Citation Nr: 18151902 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-18 223 DATE: November 20, 2018 REMANDED Entitlement to an increased rating in excess of 50 percent for chronic obstructive pulmonary disease (COPD) and sleep apnea is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) based on a service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1980 to February 1990 and from September 1990 to January 2010. The matter is on appeal from a March 2014 rating decision. 1. Entitlement to an increased rating in excess of 50 percent for COPD and sleep apnea is remanded With respect to whether a higher rating is warranted for COPD and sleep apnea, additional development is warranted. The Veteran’s condition is rated under Diagnostic Code (DC) 6604-6847. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. DC 6604 refers to COPD, and DC 6847 refers to sleep apnea. Additionally, 38 C.F.R. § 4.96 (a) provides that coexisting respiratory conditions under certain DCs, including 6604 and 6847, will not be combined. Rather a single rating is assigned under the code which reflects the predominant disability, with elevation to the next higher evaluation where the severity of the overall disability warrants it. Here, the Veteran is currently assigned a 50 percent rating for his disability under DC 6604-6847. He most recently underwent pulmonary function testing (PFT) to assess the current severity of his disability in May 2015. See May 2015 Sanford Speacility Clinic medical record. This private medical record shows an FEV1 result of 47 percent, which the Veteran argues in his Form 9, would warrant an increase from a 50 percent evaluation to a 60 percent evaluation under the rating criteria. See Form 9. 38 C.F.R. 4.96(d) provides that when evaluating based on PFTs, post-bronchodilator results are to be used in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. Upon review of the file, the 47 percent FEV1 result in the private medical record that the Veteran is referring to in his Form 9 is a pre-bronchodilator result. There is no value under the post-bronchodilator results section in this medical record. Therefore, despite the Veteran’s assertion, the examination findings from this PFT cannot be used to make a rating determination because they do not fully address the rating criteria. Nevertheless, the pre-bronchodilator result does reflect a worsening in his underlying disability since his VA Respiratory Conditions Disability Benefits Questionnaire Examination in March 2014. See March 2014 VA Respiratory Conditions Disability Benefits Questionnaire Examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Therefore, upon remand, a new examination must be obtained in order to assess the current severity of the Veteran’s disability. 2. Entitlement to a TDIU based on a service-connected disability is remanded The claim for entitlement to a TDIU should also be remanded. See Form 9. A determination on the increased rating claim for COPD and sleep apnea could have a significant impact on the outcome of the TDIU issue, and therefore, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his COPD and sleep apnea. The claims file should be made available to the examiner, who should indicate that the file was reviewed in his/her examination report. The examiner should take a complete history from the Veteran. All indicated tests and studies should be completed, to include pulmonary function testing. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected COPD and sleep apnea under the rating criteria. The examiner should specifically note the Veteran’s pre and post-bronchodilator FEV-1, FEV-1/FVC, DLCO (SB), and maximum oxygen consumption measured in ml/kg, obtained with pulmonary function testing. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST “CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO.” SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If a VA examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.P.R. §§ 3.158, 3.655. 3. After completion of the above development, readjudicate the issues on appeal, including the Veteran’s claim for TDIU. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel