Citation Nr: 18157306 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-08 184 DATE: December 12, 2018 ORDER Entitlement to an evaluation in excess of 10 percent for chronic obstructive pulmonary disease (COPD), prior to April 1, 2015, is denied. Entitlement to an evaluation of 30 percent, but no greater, for COPD from April 1, 2015 through May 31, 2018, is granted. Entitlement to an evaluation of 60 percent, but no greater, for COPD from May 31, 2018 is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT 1. Prior to April 1, 2015, the evidence did not reflect that the Veteran’s COPD was manifested by FEV-1 of 56-to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. 2. From April 1, 2015, there is evidence of the Veteran using daily inhalational bronchodilator therapy to treat his COPD. 3. From May 31, 2018, there is evidence of the Veteran requiring intermittent courses or bursts of systemic (oral or parenteral) corticosteroids, exceeding three per year, to treat his COPD. CONCLUSIONS OF LAW 1. Prior to April 1, 2015, the criteria for an evaluation in excess of 10 percent for COPD have not been met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.96, 4.97, Diagnostic Codes 6600, 6602 & 6604 (2017). 2. From April 1, 2015 through March 31, 2018, the criteria for an evaluation of 30 percent, but no greater, for COPD have been met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.96, 4.97, Diagnostic Code 6602 (2017). 3. From March 31, 2018, the criteria for an evaluation of 60 percent, but no greater, for COPD have been met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.96, 4.97, Diagnostic Code 6602 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1983 to December 2003. With respect to the claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). The Veteran seeks a higher evaluation for his service-connected COPD. Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Consideration must be given to increased evaluations under other potentially applicable diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a non-service-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. 3.102 (2017); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Here, the Veteran filed his current claims on September 27, 2011. In a September 2018 Rating Decision, the RO granted entitlement to a 10 percent evaluation effective September 27, 2011, and a 30 percent evaluation effective May 31, 2018, based on the results of a VA Respiratory Conditions (Other Than Tuberculosis and Sleep Apnea) Examination. As such, the Board will assess the propriety of the 10 percent evaluation in effect prior to May 31, 2018, as well as the 30 percent evaluation in effect since May 31, 2018. Under Diagnostic Code 6600 (Bronchitis, chronic), a 10 percent rating is warranted for FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC or 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Methond (DLCO (SB)) 66- to 80-percent predicted. 38 C.F.R. § 4.97, Diagnostic Code 6600. A 30 percent rating is for application when there is 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 warranted when there is FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent predicted, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent predicted, or; DLCO (SB) less than 40 percent predicted value, 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 is rated 100 percent disabling. 38 C.F.R. § 4.97, Diagnostic Code 6600. Under Diagnostic Code 6602 (Asthma, bronchial), a 10 percent is warranted for FEV-1 of 71-to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent is warranted for FEV-1 of 56-to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent is warranted FEV-1 of 40-to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A maximum 100 percent rating is assigned for bronchial asthma with an FEV-1 of less than 40-percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602. Under Diagnostic Code 6604 (Chronic obstructive pulmonary disease), a 10 percent evaluation is warranted or pulmonary function tests showing 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 evaluation requires 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 warranted for an FEV-1 of 40- to 55-percent predicted; or, an FEV-1/FVC of 40 to 55 percent; or, a 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 disability rating is warranted for an FEV-1 less than 40 percent of predicted value; or, an FEV-1/FVC less than 40 percent; or, a DLCO (SB) less than 40-percent predicted; or with maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; with right ventricular hypertrophy, or; with pulmonary hypertension (shown by echo or cardiac catheterization), or; with episode(s) of acute respiratory failure, or; when outpatient oxygen therapy is required. 38 C.F.R. § 4.97, Diagnostic Code 6604. These rating criteria are written in the disjunctive, meaning only one condition under the rating criteria must be met to be afforded a specific disability rating. See Johnson v. Brown, 7 Vet. App. 95 (1994) (finding only one disjunctive "or" requirement must be met in order for an increased rating to be assigned); cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) (finding use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96 (d)(4) (2017). When evaluating based on PFTs, rates are to 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) (2017). Here, the Veteran was afforded a VA Respiratory Conditions Examination in March 2012. The Veteran’s respiratory condition did not require the use of oral bronchodilators, antibiotics, or oral or parenteral corticosteroid medications, but rather required the use of intermittent inhalational bronchodilator therapy. Pulmonary function tests showed post-bronchodilator values of forced expiratory volume in one second (FEV1) 75 percent, and a ratio of FEV-1 to forced vital capacity (FEV1/FVC) 85 percent. The VA examiner indicated that the FEV1/FVC test result most accurately reflected the Veteran’s current pulmonary function, and noted that the abnormal test result was most likely due to obesity. The Veteran was again provided with a VA Respiratory Conditions Examination in August 2015, at which time he was diagnosed as having COPD. The Veteran’s respiratory condition did not require the use of oral bronchodilators, antibiotics, or oral or parenteral corticosteroid medications, but rather required the use of daily inhalational bronchodilator therapy. Pulmonary function tests showed pre-bronchodilator values of forced expiratory volume in one second (FEV1) 71 percent, and a ratio of FEV-1 to forced vital capacity (FEV1/FVC) 80 percent. The VA examiner indicated that the FEV1/FVC test result most accurately reflected the Veteran’s current pulmonary function. The Veteran was most recently provided with a VA Respiratory Conditions Examination in May 2018, at which time he was diagnosed as having COPD. The Veteran’s respiratory condition did not require the use of oral bronchodilators or antibiotics; rather, his conditions required intermittent courses or bursts of systemic (oral or parenteral) corticosteroids (four or more in the past twelve months) as well as daily inhalational bronchodilator therapy. Pulmonary function tests showed post-bronchodilator values of forced expiratory volume in one second (FEV1) 65 percent, and a ratio of FEV-1 to forced vital capacity (FEV1/FVC) 103 percent. The VA examiner indicated that the FEV1 test result most accurately reflected the Veteran’s current pulmonary function. Based on the evidence presented above, the Board finds that under Diagnostic Codes 6600 and 6604, an evaluation in excess of 10 percent is not warranted for the Veteran’s COPD prior to May 31, 2018. The evidence of record does not show that there is 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. Therefore, an increased rating of 30 percent is not warranted. However, under Diagnostic Code 6602 (for bronchial asthma) a 30 percent evaluation is warranted for daily inhalation therapy, and the August 31, 2015, VA examination indicated that the Veteran had to use an Albuterol inhaler on a daily basis, approximately two to six times per day depending on his activities. A review of his treatment records reflect that this change from intermittent inhalational bronchodilator therapy to daily inhalational bronchodilator therapy was made on April 1, 2015, following a heart attack. As rating the Veteran’s disability analogous to Diagnostic Code 6602 is more beneficial to him, the Board finds that a 30 percent evaluation is warranted effective April 1, 2015, pursuant to Diagnostic Code 6602. Additionally, also pursuant to Diagnostic Code 6602, a 60 percent evaluation is warranted for intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids from May 31, 2018. Here, the Veteran’s May 31, 2018, VA examination indicated that his COPD required intermittent courses or bursts of systemic (oral or parenteral) corticosteroids (four or more in the past twelve months). As this May 31, 2018, VA examination is the earliest evidence of the Veteran requiring courses or bursts of systemic corticosteroids exceeding three per year, the Board finds that he is entitled to a 60 percent evaluation for COPD effective May 31, 2018, pursuant to Diagnostic Code 6602. However, the Board finds that the Veteran is not entitled to an evaluation in excess of 60 percent for his COPD at any time during the appeal period. That is, there is no evidence of FEV-1 less than 40 percent of predicted value, an FEV-1/FVC less than 40 percent, a DLCO (SB) less than 40-percent predicted, maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, acute respiratory failure, outpatient oxygen therapy, or daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. The Board has also considered other diagnostic codes applicable to the Veteran’s respiratory condition. The Board finds no evidence of incapacitating episodes, pulmonary emphysema, respiratory failure or requirement of outpatient oxygen therapy. Therefore, Diagnostic Codes 6601, 6603 and 6604 are not for application for a higher rating. Similarly, as there is no reported interstitial lung disease or restive lung disease, Diagnostic Codes 6825-6833 and 6840-6845 are not for application. While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Although the Veteran may believe that he meets the criteria for a higher disability rating, his complaints and the corresponding medical findings do not meet the schedular requirements for higher evaluations beyond those described above. Accordingly, the preponderance of the evidence is against increased evaluations beyond those described above for the Veteran’s service-connected COPD. Thus, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107 (b) (2014); Gilbert, 1 Vet. App. 49, 54-56 (1990). Lastly, when entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Here, the Veteran’s claim of entitlement to a TDIU was explicitly denied by the RO in a September 2015 Rating Decision and December 2015 Statement of the Case, and the Veteran chose not to appeal this issue to the Board in his February 2016 VA Form 9. Therefore, further consideration of entitlement to TDIU is not required at this time. REASONS FOR REMAND The Veteran also seeks entitlement to service connection for sleep apnea. Unfortunately, the Board finds that additional development must be undertaken before this issue can be adjudicated on the merits. The Veteran alleges that his currently diagnosed sleep apnea was caused or aggravated by his service-connected COPD, or that it was due to exposure to lead-based paint and/or asbestosis while serving as a Damage Control Officer aboard the USS Dwight D. Eisenhower (CVN-69). The Veteran’s service treatment records confirm that he served aboard the USS Dwight D. Eisenhower (CVN-69). The Veteran was provided with a VA Sleep Apnea Examination in February 2013, at which time he was diagnosed as having obstructive sleep apnea. However, the VA examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the VA examiner explained that, “Sleep Apnea has many factors that causes the condition which includes excess weight, neck circumference, a narrowed airway, being male, being older, family history of the condition, race, use of alcohol, smoking, and nasal congestion. This condition is a common and serious disorder in which breathing repeatedly stops or 10 seconds or more during sleep. Given the above factors that can lead to the condition I do not see any consultation or any indication that can relate to the claimant’s diagnosed of Sleep Apnea while in the service. He entered military service from 12/1983 and retired in 2003. He was given sleep Study in August of 2012 and given the diagnoses of Obstructive Sleep Apnea in September of 2012, this is 9 years after he was no longer in the service.” The Veteran was most recently provided with a VA Sleep Apnea examination in May 2018, at which time he was again diagnosed as having obstructive sleep apnea. The Veteran reported that his sleep apnea began in the 1990s while he was still in service. However, the VA examiner opined that there was no medical evidence suggesting a relationship between obstructive sleep apnea (OSA) and the Veteran’s service-connected COPD or right atrial and right ventricular enlargement. Rather, the VA examiner explained that: There is NO medical evidence suggesting a relationship between the current OSA and his "bradycardia" in service. At the time bradycardia was first diagnosed on 10.1.1986 Veteran was 23 years old, weighed 150 lbs (compared to 249 lbs now) and was probably in the best shape of his life due to military training. It is well known fact that young males and athletes have lower average heart rates than the general populations as their hearts are so efficient from regular exercise that they do not need to beat so often to perform the same workload. Obstructive sleep apnea is a pathophysiologic episodic narrowing of the airway during sleep. Risk factors for sleep apnea are overweight/obese, male gender, age, family history of OSA or snoring, large neck circumference, large tonsils, alcohol consumptions, high blood pressure, smoking, metabolic syndrome, and diabetes. Approximately 2/3 of people with OSA are overweight or obese and obesity is major risk factor for sleep apnea mainly due to direct mechanical effects on the respiratory system though fat deposits within the upper airway and reduction in lung volume. At the time the Veteran was first diagnosed with OSA in 2011, he was 46 year old, male gender, 249 lbs with BMI of 37 (morbid obesity) and large neck circumference of 17/17.5. It is at least as likely as not (>50% probability) that his OSA was caused by these factors. The Board finds that the opinions provided by the February 2013 and May 2018 VA examiners with respect to the likely etiology of the Veteran’s sleep apnea are inadequate. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). First, although the May 2018 VA examiner addressed the likelihood that the Veteran's obstructive sleep apnea was caused by his service-connected disabilities, she failed to address whether the obstructive sleep apnea was aggravated or worsened by his service-connected disabilities. In other words, the May 2018 VA examiner failed to address the aggravation aspect of the theory of secondary service connection. See 38 C.F.R. § 3.310(a), (b); see also Atencio v. O’Rourke, No. 16-1561 (Vet. App. July 6, 2018) (causation and aggravation are independent concepts and should have separate findings and rationale); El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (findings of “not due to,” “not caused by” and “not related to” are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). Moreover, the Veteran has alleged that exposure to lead-based paint and/or asbestosis while serving as a Damage Control Officer aboard the USS Dwight D. Eisenhower (CVN-69) contributed to his current sleep apnea. Neither the February 2013 VA examiner nor the May 2018 examiner addressed this theory of causation, despite studies showing that environmental lead exposure can cause oxidative stress, which has also been linked to sleep disorders such as sleep apnea. As such, on remand, the Veteran should be provided with another VA examination which addresses these theories of entitlement. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine whether his diagnosed sleep apnea is caused or otherwise related to his period of military service, or caused or aggravated by any service-connected disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed sleep apnea began in or was otherwise caused by the Veteran’s active service, to include his claimed exposure to asbestos and/or lead paint aboard the USS Dwight D. Eisenhower (CVN-69). If not, the examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed sleep apnea was aggravated (i.e., worsened beyond the normal progression of the disease) by any of the Veteran’s service-connected disabilities, to include COPD. If aggravation of sleep apnea is found, then the examiner must attempt to establish a baseline level of severity of the disability prior to aggravation by the service-connected disabilities. Rationale must be provided for the opinions proffered. In providing such rationale, the examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Readjudicate the claim remaining on appeal. If the benefit sought on appeal remains denied, then provide a Supplemental Statement of the Case to the Veteran and   his representative, and provide an appropriate period in which to respond. Then, if warranted, return the appeal to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel