Citation Nr: 1807231 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-17 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating greater than 60 percent prior to August 16, 2012, for chronic obstructive pulmonary disease (COPD), including on an extraschedular basis. REPRESENTATION Appellant represented by: Jeany Mark, Attorney ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from January to July 1961, September 1962 to August 1964, and from October 1964 to November 1982. He served in combat in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted the Veteran's claim of service connection for chronic obstructive pulmonary disease (COPD) (which was characterized as asthma), assigning a 60 percent rating effective November 10, 2005 (the date of the Veteran's service connection claim). The Veteran disagreed with this decision in October 2012, seeking a higher initial rating than 60 percent for his service-connected COPD. He perfected a timely appeal in May 2014. In a June 2017 rating decision, the RO assigned a 100 percent rating effective August 16, 2012, for the Veteran's service-connected COPD. The Board notes that the initial 60 percent rating assigned prior to August 16, 2012, for the Veteran's service-connected COPD is not the maximum rating available for this disability and this claim remains in appellate status for the time period prior to August 16, 2012. The Board also notes that the more recent medical evidence indicates that the Veteran currently experiences COPD rather than asthma which is related to active service. Accordingly, the Board has recharacterized this claim as stated on the title page of this decision. See also AB v. Brown, 6 Vet. App. 35 (1993). This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The record evidence shows that, prior to August 16, 2012, the Veteran's service-connected COPD is manifested by, at worst, a Forced Expiratory Volume in 1 Second (FEV-1) of 40 to 55 percent of predicted value, an FEV-1/Forced Vital Capacity (FVC) of 40 to 55 percent of predicted value, and does not require outpatient oxygen therapy. 2. The record evidence does not indicate that, prior to August 16, 2012, the symptomatology attributable to the Veteran's service-connected COPD presents an exceptional or unusual disability picture with marked interference with his prior employment as a mechanic or frequent periods of hospitalization which render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for an initial rating greater than 60 percent prior to August 16, 2012, for COPD have not been met, including on an extraschedular basis. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.97, Diagnostic Code (DC) 6604 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his service-connected COPD is more disabling than currently evaluated. He essentially contends that this disability has been completely disabling since he filed his service connection claim on November 10, 2005. He also contends that the symptomatology that he experiences with his service-connected COPD is not contemplated with the relevant rating criteria for this disease, entitling him to an initial rating greater than 60 percent prior to August 16, 2012, for COPD on an extraschedular basis. Factual Background & Analysis The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to an initial rating greater than 60 percent prior to August 16, 2012, for COPD, including on an extraschedular basis. The Veteran contends that his service-connected COPD has been totally disabling since he filed his service connection claim for this disability on November 10, 2005, entitling him to an initial rating greater than 60 percent prior to August 16, 2012. He also contends that the symptomatology attributable to his service-connected COPD prior to this date is not contemplated within the Rating Schedule, entitling him to an initial rating greater than 60 percent prior to August 16, 2012, for COPD on an extraschedular basis. The record evidence does not support the Veteran's assertions regarding his entitlement to a higher initial rating prior to August 16, 2012, for COPD, including on an extraschedular basis. With respect to the Veteran's assertions that he is entitled to a higher initial rating prior to August 16, 2012, for his service-connected COPD on a scheduler basis, the Board notes that the record evidence shows that, prior to this date, the Veteran's service-connected COPD is manifested by, at worst, an FEV-1 of 40 to 55 percent of predicted value, an FEV-1/FVC of 40 to 55 percent of predicted value, and does not require outpatient oxygen therapy. For example, on VA respiratory diseases examination in March 2006, the Veteran's complaints included increasing shortness of breath on exertion. The VA examiner reviewed the Veteran's medical records. The Veteran used an inhaled bronchodilator and an inhaled anti-inflammatory daily. Use of these medications relieved his symptoms and stopped acute attacks. He did not use oral steroids, parenteral steroids, antibiotics, or other immunosuppressive medications. He experienced 1 acute attack per year, less than daily wheezing, occasional dyspnea on moderate exertion, and frequent dyspnea on severe exertion. He denied experiencing any respiratory failure or periods of incapacitation. He smoked until the year 2000. Physical examination showed respiratory rate of 20, a 10 percent weight gain from baseline, normal heart sounds with a click of his artificial heart valve, decreased breath sounds, rales, wheezing, slightly limited excursion of diaphragm, normal chest expansion, no conditions associated with pulmonary restrictive disease, and mild impairment between asthma attacks. A chest x-ray showed evidence of chronic obstructive lung disease. Pulmonary function testing showed an FEV-1 of 41 percent and an FEV-1/FVC of 84 percent (pre-bronchodilator) and an FEV-1 of 45 percent and an FEV-1/FVC of 90 percent (post-bronchodilator). The VA examiner stated that there was no evidence of cor pulmonale, pulmonary hypertension, or right ventricular hypertrophy. This examiner also stated that the Veteran was retired after working for 20 years as a mechanic due to his age and duration of his prior employment. The diagnosis was COPD due to cigarette smoking. On VA respiratory examination in August 2008, the Veteran's complaints included a cough once a day, coughing up several teaspoons of sputum, shortness of breath while sitting and with exertion. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. He denied any asthma attacks in the previous year and any periods of incapacitation. He also stated that he did not have to use oxygen. He stopped working in 2003. Physical examination showed respiration rate of 24, a loud click of the aortic valve (which had been replaced surgically). A chest x-ray showed no active inflammatory disease with no indication of COPD. A review of the Veteran's prior records showed COPD and not asthma. The Veteran's current pulmonary function testing showed mixed ventilatory impairment which "is suggestive of the fact that he has no asthma but instead has COPD, more likely than not due to his smoking problem." The diagnoses included COPD. On VA respiratory examination in June 2010, the Veteran's complaints included an inability to walk more than 1 block "without having to stop to rest or use his rescue inhaler because of shortness of breath" which occurred "on his more symptomatic days." He stated that, on cooler days, "he can walk 1 mile on level [ground] at his own pace." The VA examiner reviewed the Veteran's electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran also stated that he experienced "significant shortness of breath when working in his home garden." He did not mow the lawn because the dust, fresh cut grass, and pollens aggravated his asthma. He also reported worsening asthma symptoms "when exposed to the hay in his barn, which he mostly avoids." He quit smoking 20 years earlier after smoking 1-pack per day for 20 years. A family history of siblings developing post-adolescent asthma was noted. A surgical history of aortic valve replacement also was noted. Objective examination showed he was somewhat obese, mild edema in the nasal mucosa, modestly diminished respiratory excursions and breath sound intensity, and bilateral coarse inspiratory and expiratory rhonchi "which diminished but failed to clear following a productive cough." The VA examiner reviewed the Veteran's medical records which were "indicative of a significantly worsening in his lung function between 2006-2008." This examiner also found a number of "additional facts" supporting a diagnosis of asthma over COPD. This examiner stated that whether the Veteran had smoker's COPD "in addition to or instead of asthma cannot be explicitly determined but in fact makes little difference therapeutically." This examiner concluded that the Veteran's diagnosis was bronchospastic airway disease or asthma based on his history, clinical findings, and prior pulmonary function testing. VA pulmonary function testing in September 2010 showed a "moderately reduced" FVC of 51 percent, an FEV-1 of 42 percent, and an FEV-1/FVC of 62 percent. There was no significant improvement in FEV-1 post-bronchodilator. On VA outpatient treatment later in September 2010, the Veteran's complaints included chronic predictable exertional dyspnea. He stated that he had to stop twice when walking 2 blocks due to shortness of breath. He used albuterol with good relief of his symptoms. The Veteran's current pulmonary function testing favored a diagnosis of COPD. A computerized tomography (CT) scan of the lungs showed no interstitial lung disease or bronchiectasis. The VA clinician stated that, although airway hyperreactivity was shown on prior spirometry, the current study did not show a significant bronchodilator response. This clinician also stated that the Veteran's poor exercise tolerance could be explained by his airway obstruction and his cardiac disease (low left ventricular ejection fraction). The diagnoses included chronic severe asthma with spirometry essentially unchanged from 2008 or 2006. The Veteran was advised to continue his current pulmonary treatment regime with no changes. In February 2011, the Veteran reported he was "status quo" with regard to his asthma. He had a morning cough with approximately 1/2 cup of clear mucus and was very short of breath with exertion. He stated that, when walking uphill from his barn, he had to stop twice and take albuterol and he had to stop after each time that he lifted a bale of hay on to a truck. The VA clinician stated that the Veteran's September 2010 "spirometry results [were] nearly identical to" his August 2008 and 2006 results. Physical examination showed wheezes and crackles in the lungs. The impressions included moderately severe persistent asthma with sub-optimal symptom control and wheezing. The VA clinician stated that part of the Veteran's dyspnea on exertion "is likely cardiac." In a July 2011 addendum to the June 2010 VA respiratory examination report, the VA clinician who conducted that examination again opined that the Veteran had asthma and not COPD. The rationale for this opinion was that the Veteran's recent pulmonary function testing did not show a significant bronchodilator response. The VA clinician next opined that the record evidence clearly showed that the Veteran's respiratory disorder was related to active service. The rationale for this opinion was that the Veteran's medical records showed in-service treatment with steroids and nebulizers after he complained of being unable to breathe. This clinician stated that the Veteran's ongoing symptoms and treatment "are all consistent with bronchospastic airways dysfunction." This clinician finally opined that it was unlikely that the Veteran's initial respiratory disorder was related to his history of smoking. The rationale for this opinion was the date of onset for the Veteran's respiratory symptoms at age 24-25 (prior to starting smoking) and his chronic asthma which preceded his COPD. The Veteran reported to the emergency room (ER) at a VA Medical Center (VAMC) on August 14, 2012, complaining of 3 days of worsening shortness of breath and new-onset bilateral leg swelling. He was given Lasix intravenously and his shortness of breath improved. He was admitted to the VAMC for observation and treatment. A physician note on August 16, 2012, showed that the Veteran reported that he was "much improved today with relief of shortness of breath." A home oxygen assessment was pending. Physical examination showed clear lungs to auscultation without wheezes, crackles, or rhonchi. The assessment included COPD exacerbation. A home oxygen assessment completed on August 16, 2012, while the Veteran was hospitalized at a VAMC for initial complaints of worsening shortness of breath, showed that his oxygen saturation was 86 percent at rest. The VA clinician ordered home oxygen for the Veteran with continuous oxygen at 3-4 liters per minute, 3.0 liters per minute at rest, 4.0 liters per minute while walking, and 3.0 liters per minute during sleep. This clinician estimated that the Veteran would need home oxygen for 4-12 months. The Board recognizes here that the Veteran's representative has asserted that the VA examinations conducted in the time period at issue in this appeal (i.e., prior to August 16, 2012) were incomplete and/or inadequate for VA adjudication purposes. In advancing an argument concerning the adequacy of the medical evidence obtained on VA examinations conducted in March 2006, August 2008, and in June 2010, the Veteran and his representative appear to be raising a general challenge to the professional competence of the VA examiners who provided the opinions or conducted the examinations. Both the Court and the Federal Circuit have held, however, that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the appellant to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999)). The Court held in Cox that "the Board is entitled to assume the competence of a VA examiner." Id. at 569 (citations omitted). Absent evidence or argument which called in to question a VA examiner's professional competence, the Court concluded in Cox that it is not error for the Board to presume that a VA examiner is competent. Id. See also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explicitly extending the presumption of competence discussed in Cox and Rizzo to VA examiners). The Federal Circuit in Rizzo expressly adopted the Cox standard regarding the presumption of competence of VA examiners absent specific argument or evidence concerning professional competence advanced by an appellant. See Rizzo, 580 F.3d at 1290-91. In adopting the presumption of competence of VA examiners announced by the Court in Cox, the Federal Circuit specifically held in Rizzo that: Absent some challenge to the expertise of a VA expert, this court perceives no statutory or other requirement that VA must present affirmative evidence of a physician's qualifications in every case a precondition for the Board's reliance upon that physician's opinion. Indeed, where, as here, the Veteran does not challenge a VA medical expert's competence or qualifications before the Board, this court holds that VA need not affirmatively establish that expert's competency. Id. Neither the Veteran nor his representative has raised a specific challenge to the professional medical competence or qualifications of the VA examiners who conducted the VA examinations dated prior to August 16, 2012. Other Federal Circuit precedent also suggests that VA may rely upon the VA examinations (and other medical evidence of record) dated prior to August 16, 2012, in adjudicating the Veteran's currently appealed claim. In Bastien, an appellant challenged the qualifications of a VA physician to provide a medical expert opinion on the grounds that this physician lacked objectivity and/or independence because he was a VA employee. See Bastien, 599 F.3d at 1306-7. Citing Rizzo, the Federal Circuit in Bastien rejected the appellant's challenge to the qualifications of a VA physician and held instead that the law and regulations provide that VA "is explicitly and implicitly authorized to use its own employees as experts." See Bastien, 599 F.3d at 1307 (citing 38 U.S.C. §§ 5103A(d), 7109(a); 38 C.F.R. § 20.901). The Federal Circuit also held in Bastien that an appellant challenging the expertise of a VA physician must "set forth the specific reasons...that the expert is not qualified to give an opinion." Id. That has not happened in this case. Neither the Veteran nor his representative has identified or submitted any evidence or argument that the VA examiners who conducted the examinations or provided the opinions dated prior to August 16, 2012, were not competent or lacked the professional medical training necessary to review the electronic claims file, including the Veteran's service treatment records and post-service VA and private treatment records, and provide competent opinions concerning the current nature and severity of his service-connected COPD. There is no requirement, as the Court held in Cox and as the Federal Circuit held in Rizzo, that VA establish the competence of the any VA examiner prior to relying on the medical evidence dated prior to August 16, 2012, in adjudicating his currently appealed claim. The Federal Circuit noted in Rizzo that there was "no law or precedent suggesting that the Board must have first established [a VA examiner's] qualifications on the record before assigning his opinion probative value." See Rizzo, 580 F.3d at 1291-92. "VA benefits from a presumption that it has properly chosen a person qualified to provide a medical opinion in a particular case." Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)); Wise v. Shinseki, 26 Vet. App. 517, 524-27 (2014). It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks, 716 F.3d at 585 ("Viewed correctly, the presumption [of competence] is not about the person or a job title; it is about the process."). Thus, absent clear evidence sufficient to rebut the presumption of competence, the fact that a person was chosen by VA to provide an opinion generally assures that person's competence to provide the requested opinion. Sickels, 643 F.3d at 1366. There has been no showing or even an allegation that the VA clinicians who conducted the examinations of record or treated the Veteran as an outpatient dated prior to August 16, 2012, were not competent or did not report accurately what they found in their review of the claims file. The Board also finds that the medical opinions of record dated prior to August 16, 2012, are adequate for evaluation purposes because they addressed fully all of the Veteran's contentions regarding the nature and severity of his service-connected COPD. See also 38 C.F.R. § 4.2 (2017). The Veteran has asserted that his service-connected COPD is more disabling than currently (and initially) evaluated prior to August 16, 2012, entitling him to an initial scheduler rating greater than 60 percent prior to this date. Despite the Veteran's assertions to the contrary, the record evidence shows that, prior to August 16, 2012, his service-connected COPD is manifested by, at worst, an FEV-1 of 40 to 55 percent of predicted value and an FEV-1/ FVC) of 40 to 55 percent of predicted value (i.e., a 60 percent rating under DC 6604). See 38 C.F.R. § 4.97, DC 6604 (2017). The record evidence also shows that the Veteran's service-connected COPD did not require outpatient oxygen therapy (as is required for a 100 percent rating under DC 6604) prior to August 16, 2012, when home oxygen was prescribed by his VA treating clinicians for treatment of this service-connected disability during a hospital stay for worsening shortness of breath. Id. For example, VA examination in March 2006 showed an FEV-1 of 41 percent and an FEV-1/FVC of 84 percent (pre-bronchodilator) and an FEV-1 of 45 percent and an FEV-1/FVC of 90 percent (post-bronchodilator). The March 2006 VA examiner stated that there was no evidence of cor pulmonale, pulmonary hypertension, or right ventricular hypertrophy. Similarly, VA examination in August 2008 showed mixed ventilatory impairment with no bronchodilator response on pulmonary function testing (although the FEV-1 and FVC percentages were not provided). A VA clinician subsequently concluded in September 2010 that the Veteran's spirometry (or pulmonary function testing) essentially had been unchanged since initially being tested at the March 2006 VA examination. The Veteran's September 2010 VA pulmonary function testing also showed an FVC of 51 percent, an FEV-1 of 42 percent, and an FEV-1/FVC of 62 percent. The Veteran specifically was advised in September 2010 to continue his current pulmonary treatment regime (medication and no home oxygen) with no changes. The February 2011 VA clinician stated that the Veteran's September 2010 "spirometry results [were] nearly identical to" his August 2008 and 2006 results. This finding is in accord with the earlier finding by the September 2010 VA clinician concerning the Veteran's essentially unchanged pulmonary function testing since 2006. All of this evidence persuasively suggests that the symptomatology attributable to the Veteran's service-connected COPD merits, at best, an initial 60 percent rating under DC 6604 prior to August 16, 2012. See 38 C.F.R. § 4.97, DC 6604 (2017). The Veteran also has not identified or submitted any evidence demonstrating his entitlement to an initial scheduler rating greater than 60 percent prior to August 16, 2012, for his service-connected COPD. Thus, the Board finds that the criteria for an initial rating greater than 60 percent prior to August 16, 2012, for COPD have not been met on a scheduler basis. The Board finally must consider whether the Veteran is entitled to consideration for referral for the assignment of an extraschedular rating for his service-connected COPD. See 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). As noted elsewhere, the Veteran specifically contends that the symptomatology attributable to the service-connected COPD prior to August 16, 2012, is not contemplated within the Rating Schedule, entitling him to consideration of an initial rating greater than 60 percent on an extraschedular basis. An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that initial 60 percent schedular rating assigned for the Veteran's service-connected COPD prior to August 16, 2012, is not inadequate. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's service-connected COPD throughout this time period. This is especially true because the initial 60 percent rating assigned for the Veteran's COPD prior to August 16, 2012, under DC 6604 contemplates severe (but not total) disability. See 38 C.F.R. § 4.97, DC 6604 (2017). As discussed above, multiple VA clinicians found that the Veteran's pulmonary function testing essentially has been unchanged since 2006. None of this testing suggests that, prior to August 16, 2012, the Veteran's FEV-1 or FEV-1/FVC merits the assignment of an initial rating greater than 60 percent under DC 6604 (as also discussed above). Id. Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization. The March 2006 VA examiner specifically noted that the Veteran was retired after working for 20 years as a mechanic due to his age and duration of his prior employment. Subsequent medical records suggest that the Veteran continued to work in his barn and a home garden although he reported that his service-connected COPD interfered with or slowed this work when he did it. The Board acknowledges that the Veteran reported to the ER at a VAMC on August 14, 2012, complaining of a 3-day history of worsening shortness of breath. He did not indicate, and the medical evidence does not show, that he was hospitalized frequently for his service-connected COPD before or after reporting to the ER on August 14, 2012. These records show instead that the Veteran complied with his pulmonary treatment regime which consisted of several medications (but not oxygen) prior to reporting to the ER in August 2012. They also indicate that the Veteran reported that taking his medications relieved his symptoms for extended periods of time and resolved acute attacks. The Board observes here that the Veteran is in receipt of a 100 percent scheduler rating effective August 16, 2012, for his service-connected COPD based on the decision by his treating VA physicians to prescribe home oxygen - for the first time - to treat this disability after he reported to the ER. In light of the above, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial rating greater than 60 percent prior to August 16, 2012, for COPD, including on an extraschedular basis, is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs