Citation Nr: 18154850 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-55 421 DATE: November 30, 2018 ORDER Entitlement to a 100 percent rating for left diaphragmatic hernia is granted for the entire appeal period. FINDING OF FACT For the entire appeal period, the left diaphragmatic hernia has required outpatient oxygen therapy. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for left diaphragmatic hernia have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.96, 4.97, Diagnostic Code 6600 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from January 1967 to January 1970 and September 1971 to March 1974. 1. Left Diaphragmatic Hernia In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. § 4.7. The Veteran’s left diaphragmatic hernia has been rated at 0 percent under Diagnostic Code (DC) 6600 since the effective date of service connection on April 17, 2014. 38 C.F.R. § 4.97, DC 6600; February 2015 Codesheet. Under DC 6600, a 10 percent rating is warranted for: Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted, or; 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)) of 66- to 80-percent predicted. A 30 percent rating is warranted for: FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) of 56- to 65-percent predicted. A 60 percent rating is warranted for: 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). A 100 percent rating is warranted for: FEV-1 less than 40 percent of predicted value, or; the ratio of FEV-1/FVC less than 40 percent, or; (DLCO (SB) of 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. Throughout the entire appeal period, the left diaphragmatic hernia has required outpatient oxygen therapy. Numerous treatment records from Philadelphia VAMC document a longitudinal dependence on supplemental oxygen throughout the entire appeal period. See April 2014, June 2014, July 2014, August 2014, November 2014, January 2015, April 2015, November 2015, May 2016, June 2016, July 2016, October 2016, and November 2016 records. This oxygen dependence was also confirmed in a May 2014 letter by Dr. MLM, who described the left diaphragmatic hernia symptoms as including: severe dyspnea, shunting, severe restriction on pulmonary function testing, and hypoxemia requiring continuous oxygen supplementation. A December 2014 VA examiner also noted that the Veteran had been oxygen-dependent and required continuous oxygen therapy since June 2009; although the VA examiner opined that the Veteran’s COPD, rather than left diaphragmatic hernia, was predominately responsible for the oxygen dependency, that conclusion was not supported by any rationale and is contrary to Dr. MLM and another VAMC treatment record. See May 2014 letter by Dr. MLM (unambiguously attributed oxygen dependency to the left diaphragmatic hernia based on hernia enlargement over the years causing respiratory compromise); July 2014 Philadelphia VAMC (while discussing PFT results and home oxygen in relation to COPD and the hernia, the provider stated that the severe restriction impairment, severe diffusion impairment, and significantly reduced maximal inspiratory and expiratory pressures were most likely related to the Veteran’s large left diaphragmatic defect). As the preponderance of the evidence weighs in favor of finding that the disability required outpatient oxygen therapy for the entire appeal period, the Board grants a 100 percent rating for the entire appeal period. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel