Citation Nr: 18161055 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-63 192 DATE: December 28, 2018 ORDER Entitlement to an initial 60 percent disability evaluation for chronic obstructive pulmonary disease (COPD) is granted. FINDING OF FACT The Veteran’s service-connected chronic obstructive pulmonary disease has been manifested by no worse than FEV-1 of 49 percent and FVC of 56 percent, without use oxygen therapy. CONCLUSION OF LAW The criteria for a 60 percent disability rating, but no higher, for chronic obstructive pulmonary disease have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6602 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the U.S. Navy from September 1971 to September 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2015 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Roanoke, Virginia. Entitlement to an initial 60 percent disability evaluation for chronic obstructive pulmonary disease (COPD) 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). Here, the service-connected disability on appeal has not materially changed and a uniform evaluation is warranted for the rating period on appeal. The Veteran’s asthma currently is rated as noncompensable (i.e., 0 percent) disabling pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6604. Diagnostic Code 6604 rates the severity of chronic obstructive pulmonary disorder based primarily on objective numerical results of pulmonary function testing (PFT). Chronic obstructive pulmonary disease is evaluated using the following tests: Forced Expiratory Volume in one second (FEV-1); or the ratio of FEV-1 to Forced Vital Capacity (FEV-1/FVC) or; diffusing capacity of the lungs for carbon monoxide measured in a single breath (DLCO (SB)). See 38 C.F.R. § 4.97. A 10 percent rating is warranted for FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; 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) 56 to 65 percent predicted. A 60 percent rating is assigned for an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) 40 to 55 percent predicted. A maximum 100 percent rating is assigned for an FEV-1of less than 40 percent predicted, or 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; or episodes of acute respiratory failure; or requires outpatient oxygen therapy. See 38 C.F.R. § 4.97, Diagnostic Code 6604 (2018). The Board notes that 38 C.F.R. § 4.96 provides that when applying Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845, pulmonary function tests are required except in certain circumstances specified in 38 C.F.R. § 4.96(d). Pulmonary function tests are required except: (i) when the results of a maximum exercise capacity test are of record and are 15 ml/kg/min or less; if a maximum exercise capacity test is not of record, evaluation is 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; or (iv) when outpatient therapy oxygen is required. 38 C.F.R. § 4.96(d)(1). If the DLCO (SB) test is not of record, evaluation is 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 the pulmonary function tests are not consistent with clinical findings, evaluation is based on the pulmonary function tests unless the examiner states why they are not a valid indication of respiratory functional impairment in a given case. 38 C.F.R. § 4.96(d)(3). Pulmonary function test results are generally reported before and after the administration of bronchodilator therapy. VA regulations instruct that post-bronchodilator results be used when considering PFT criteria for ratings under Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845. See 38 C.F.R. § 4.96(d)(4). When evaluating based on pulmonary function tests, post-bronchodilator results are used in applying evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre-bronchodilator values are used for rating purposes. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different pulmonary function test FEV-1 and FVC results, so that the level of evaluation would be different depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is used. 38 C.F.R. § 4.96(d)(6). Finally, if the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio should not be assigned. 38 C.F.R. § 4.96(d)(7). Under Diagnostic Code 6604, a 10 percent evaluation is warranted for FEV-1 of 71 to 80 percent predicted, FEV-1/FVC of 71 to 80 percent, or intermittent inhalational or oral bronchodilator therapy. A 30 percent disability evaluation is assigned where there is FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent, or daily inhalational or oral bronchodilator therapy. A 60 percent rating is assigned for an 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 3 times per year) course of systemic (oral or parenteral) corticosteroids. A maximum 100 percent rating is assigned under Diagnostic Code 6604 for chronic obstructive pulmonary disease with an FEV-1of 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. See 38 C.F.R. § 4.97, DC 6604 (2018). After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran’s service-connected chronic obstructive pulmonary disease is most consistent with the criteria for a 60 percent disability evaluation. The clinical evidence of record, including the November 2014 private treatment report and the January 2015 VA examination report, demonstrates pulmonary function test results consistent with a 60 percent disability evaluation. (Continued on the next page)   In this regard, the Board observes that pulmonary function testing at the January 2015 VA examination was FVC at 55 percent predicted pre-bronchodilator and 56 percent predicted post-bronchodilator; FEV-1 at 51 percent predicted pre-bronchodilator and 49 percent predicted post-bronchodilator; and FEV-1/FVC was 93 percent predicted pre-bronchodilator and 87 percent predicted post-bronchodilator. In November 2014, pulmonary function testing was FVC at 63 percent predicted pre-bronchodilator and at 66 percent predicted, FEV-1 at 53 percent predicted pre-bronchodilator and at 57 percent predicted post-bronchodilator, and FEV-1/FVC at 83 percent predicted pre-bronchodilator and at 86 percent predicted post-bronchodilator. Therefore, the Board finds that the Veteran's symptomatology fits most closely within the criteria for a 60 percent disability evaluation. The Board has reviewed the evidence for the entire period involved in this claim, and finds that there is no period during which the Veteran met the criteria for a disability rating in excess of 60 percent for service-connected chronic obstructive pulmonary disease. The Board acknowledges that the Veteran reported the use of an inhaled bronchodilator. However, the evidence of record demonstrates that the Veteran’s service-connected chronic obstructive pulmonary disorder is not productive of antibiotic use, outpatient oxygen therapy, or corticosteroids. The Veteran denied physician’s visits for exacerbations, as well as a history of respiratory failure and incapacitating episodes. There was also no evidence of cardiopulmonary complications. Accordingly, a 60 percent rating, and no higher, is awarded for chronic obstructive pulmonary disease. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel