Citation Nr: 1808799	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  14-10 681A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for obesity, as secondary to bronchiectasis.

2. Entitlement to an initial rating higher than 30 percent for bronchiectasis.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran




ATTORNEY FOR THE BOARD

L. Edwards Andersen, Counsel


INTRODUCTION

The Veteran had active service from July 1988 to December 1988.  This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran requested a hearing before the Board.  The requested hearing was conducted in August 2017 by the undersigned Veterans Law Judge.  A transcript is associated with the claims file.


FINDINGS OF FACT

1. Obesity is not a disease or injury for which service connection may be established; obesity is not caused by or aggravated by the service-connected bronchiectasis, to include medications.

2. Prior to March 22, 2017, the evidence does not show that the Veteran's bronchiectasis was manifested by Forced Expiratory Volume (FEV)-1 of 40 to 55 percent predicted, or FEV-1/Forced Vital Capacity (FVC) of 40 to 55 percent, or Diffusion Capacity of the Lung or Carbon Monoxide (DLCO) by the Single Breath Method (SB) of 40 to 55 percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min; or was manifested by incapacitating episodes of infection of 4 to 6 weeks or at least 6 weeks of total duration per year, or near constant findings of cough with purulent sputum associated with anorexia, weight loss, and frank hemoptysis and requiring antibiotic usage almost continuously.

3. From March 22, 2017, the Veteran required outpatient oxygen therapy due to his bronchiectasis.


CONCLUSIONS OF LAW

1. Service connection for obesity is not warranted. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310, 4.1 (2017).

2. Prior to March 22, 2017, the criteria for an initial rating higher than 30 percent for bronchiectasis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Codes 6600-6601 (2017).

3. From March 22, 2017, the criteria for a rating of 100 percent for bronchiectasis are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Codes 6600-6601 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in March 2010, prior to the initial decision in this matter.

Regarding the increased rating claim, the Board notes that where the underlying claim for service connection has been granted and there is disagreement regarding a downstream issue, such as entitlement to a higher initial rating, the claim as it arose in its initial context has been substantiated and there is no need to provide additional VCAA notice concerning the downstream issue. Goodwin v. Peake, 22 Vet. App. 128, 134 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the provisions of 38 U.S.C. § 7105 (d) require VA to issue a statement of the case (SOC) concerning the downstream issue if the disagreement is not resolved. The Veteran received a timely SOC in February 2014.

VA also has a duty to assist a claimant with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). This duty includes the obtaining of identified records to substantiate the claim. VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matters decided herein has been obtained. The AOJ has obtained the Veteran's VA treatment records and private medical records have been associated with the claims file. Additionally, the Veteran was afforded adequate VA examinations for the claimed disabilities on appeal. 

As previously noted, the Veteran was provided an opportunity to set forth his contentions before a Veterans Law Judge in August 2017. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103 (c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, because the Veteran has not raised a potential Bryant problem in this appeal, no further discussion of Bryant is necessary. See Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).

In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103 (a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claims.





II. Entitlement to Service Connection for Obesity, as Due to Bronchiectasis

The Veteran seeks entitlement to service connection for obesity. He asserts the steroid medications prescribed to him for his bronchiectasis caused him to gain weight and become obese.

Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303 (a) (2017). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2017). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). 

In order to establish entitlement to service connection on a secondary basis, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.   

VA's General Counsel (GC) issued a precedential opinion concerning service connection based on obesity. See VAOPGCPREC 1-2017 (Jan. 6, 2017). In VAOPGCPREC 1-2017, GC concluded that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110, 1131 and therefore service connection may not be established on a direct basis. Obesity is also not a disability for the purposes of secondary service connection per 38 C.F.R. § 3.310. 

While service connection cannot be established for obesity as a matter of law, where obesity resulting from a service-connected disease or injury is productive of an impairment beyond that contemplated by the applicable rating criteria, VA may consider an extraschedular rating under § 3.321 for the service-connected disability based on impairment. Obesity may also act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis per § 3.310. Id. 

The Veteran is service connected for bronchiectasis. See September 2010 rating decision. A September 2010 VA examination noted the Veteran is morbidly obese. See September 2010 VA examination.

In July 2017, a VA medical opinion was obtained. The examiner stated that bronchiectasis does not cause obesity. The examiner noted the Veteran's asserted theory that the steroids prescribed for his bronchiectasis caused his obesity. The examiner explained that a review of the Veteran's pharmacy data since 2013 shows no oral steroids were dispensed; it does show several releases of Budesonide in the past, but there were no releases between 2015 and 2016. The medication was then discontinued in June 2017. The examiner opined that the Veteran's documented level of glucocorticoid usage for his bronchiectasis is highly unlikely to be a significant cause for his obesity. The examiner stated that the Veteran reported that his young daughter (who does not have bronchiectasis or use of steroids) gained greater than 15-20 pounds a year over the past 3 years and also indicated that he has lost some weight since they started to attend nutrition counseling. The examiner concluded that this history suggests etiologic factors for obesity other than bronchiectasis with steroid use. 

First, the Board finds that obesity does not constitute a disease, injury or event for the purposes of 38 U.S.C. §§ 1110 and 1131 and service connection on this basis must be denied as a matter of law.

Second, for the reasons below, the Board finds that obesity is not caused or aggravated by the service-connected bronchiectasis, to include medications. The Board finds the July 2017 VA opinion that found that the Veteran's obesity was not related to his service-connected bronchiectasis is probative, because the rationale provided for the opinion was well-reasoned and based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). 

For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for obesity. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

III. Entitlement to an Initial Rating Higher than 30 Percent for Bronchiectasis

Service connection for bronchiectasis was established by a September 2010 rating decision, at which time a noncompensable rating was assigned, effective from November 18, 2009. In a February 2014 rating decision, the Veteran's rating was increased to 30 percent, effective November 18, 2009. The Veteran seeks entitlement to an initial rating higher than 30 percent for bronchiectasis.

Disability evaluations are determined by application of criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126.

The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability.

The Veteran is currently rated as 30 percent disabled under 38 C.F.R. § 4.97, Diagnostic Code 6601. Under this Diagnostic Code, a rating of 30 percent is warranted for incapacitating episodes of infection of two to four weeks total duration per year, or daily productive cough with sputum that is at times purulent or blood-tinged and that requires prolonged (lasting four to six weeks) antibiotic usage more than twice a year. A 60 percent rating is warranted for incapacitating episodes of infection of four to six weeks total duration per year, or near continuous findings of cough with purulent sputum associated with anorexia, weight loss, and frank hemoptysis requiring antibiotic use almost continuously. Incapacitating episodes are defined as episodes requiring best rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6601.

Diagnostic Code 6601 also provides that bronchiectasis may be rated according to pulmonary impairment, as for chronic bronchitis, under Diagnostic Code 6600. 38 C.F.R. § 4.97, Diagnostic Code 6601. Under this diagnostic code, a 60 percent rating is warranted if the Forced Expiratory Volume in one second (FEV-1) is 40 to 55 percent of predicted value, the ratio of FEV-1/Forced Vital Capacity (FVC) is 40 to 55 percent, or Diffusion Capacity of the Lung for Carbon Monoxide by Single Breath Method [DLCO (SB)] is 40 to 55 percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiovascular limit). A 100 percent rating is warranted if FEV-1 is less than 40 percent of predicted value, or FEV-1/FVC is less than 40 percent, or if DLCO (SB) is 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 episodes of acute respiratory failure, or requires outpatient oxygen therapy. 

VA evaluates pulmonary function test (PFT) results based on post-bronchodilation results. See 61 Fed. Reg. 46720 (Sept. 5, 1996). In so deciding, VA noted that The American Lung Association /American Thoracic Society Component Committee on Disability Criteria has recommended testing for pulmonary function after optimum therapy based upon reasoning that the results of such tests reflect the best possible functioning of an individual and were the figures used as the standard basis of comparison of pulmonary function. It was also noted that using post-bronchodilation results would assure consistent evaluations. Id. at 46,723. 

When PFTs are not consistent with clinical findings, evaluation should generally be based on the PFTs. Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes with some exceptions; when evaluating based on PFTs. Post-bronchodilator results are to be used unless they are poorer than the pre-bronchodilator results; then the pre-bronchodilator values should be used for rating purposes. When the results of different PFTs (FEV-1, FVC, etc.) are disparate, the test result that the examiner states most accurately reflects the level of disability should be used for evaluation, and 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. See 71 Fed. Reg. 52457-10 (Sept. 6, 2006).

VA treatment records indicate that on March 22, 2017 a home oxygen consultation was ordered due to the Veteran's bronchiectasis. In June 2017, it was noted that the Veteran had severe pulmonary status with bronchiectasis and continued to be home oxygen dependent. As noted, a 100 percent rating is warranted under Diagnostic Code 6600 if outpatient oxygen therapy is required. As such, the Board finds the Veteran is entitled to a rating of 100 percent, effective March 22, 2017.

Unfortunately, prior to March 22, 2017, the Board finds the Veteran's symptoms do not more nearly approximate a 60 percent rating under Diagnostic Code 6600 or 6601. Evidence indicates the Veteran suffered from near constant findings of cough with purulent sputum, but it was not associated with anorexia, weight loss, and frank hemoptysis requiring antibiotic usage almost continuously. Multiple VA treatment records specifically note that the Veteran did not suffer from hemoptysis. See, e.g., September 2013 and October 2015 VA treatment records. No treatment records note anorexia or weight loss due to his bronchiectasis and although antibiotics were prescribed occasionally, they were not continuous.

Furthermore, although the medical evidence indicates the Veteran sought treatment and was treated for bronchiectasis on several occasions prior to March 22, 2017, the evidence does not indicate that the Veteran suffered from incapacitating episodes of infection four to six weeks total duration per year. For example, the September 2010 and January 2017 VA examinations specifically noted that the Veteran had not had any incapacitating episodes of infection due to bronchiectasis.  Again, incapacitating episodes are defined as episodes requiring best rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6601.

Finally, the PFTs of record, prior to March 22, 2017, do not reveal a FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, or DLCO of 40 to 55 percent predicted or maximum oxygen consumption of 15 to 20 ml/kg/min. For example, in August 2010, FEV-1 was 73 percent, FEV-1/FVC was 110 percent, and DLCO was 87 percent. Similarly, March 2016 testing revealed FEV-1 of 72 percent, FEV-1/FVC of 106 percent, and DLCO of 71 percent. 

The Board recognizes the Veteran's statements attesting to his symptoms in support of his claim. The Board notes that laypersons can attest to observable symptomatology. In addition, the Veteran's statements describing his symptoms are considered competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Layno v. Brown, 6 Vet. App. 465, 469 (1994), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). These statements, however, must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, the objective medical evidence, including the private and VA treatment records, and the VA examination reports, include the information necessary to rate the Veteran's disability in accordance with the rating criteria, and the VA examiners considered the Veteran's reported symptomatology when providing their assessments. Furthermore, while the Veteran is competent to report on the presence of certain symptoms, he is not competent to opine as to his specific PFT levels, as confirmation of these symptoms requires precise medical testing. 

In conclusion, prior to March 22, 2017, the preponderance of the evidence is against the assignment of a rating higher than 30 percent; however, from March 22, 2017, the Veteran is entitled to a rating of 100 percent. See 38 U.S.C. § 5107 (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for obesity, as secondary to service-connected bronchiectasis, is denied.

Prior to March 22, 2017, entitlement to an initial rating higher than 30 percent for bronchiectasis is denied.

From March 22, 2017, entitlement to a rating of 100 percent for bronchiectasis is granted, subject to the law and regulations governing the award of monetary benefits.



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs