Citation Nr: 1809034 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 10-34 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a compensable rating for chronic obstructive pulmonary disease (COPD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Faverio, Associate Counsel INTRODUCTION The Veteran had active service from March 1979 to April 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which denied a compensable rating for the Veteran's service-connected undiagnosed respiratory disorder on the basis that the clinical evidence showed that the Veteran no longer had an undiagnosed respiratory illness and that her pulmonary function test findings were due to nonservice-connected COPD. In April 2015, the Board remanded the matter for additional evidentiary development. Pursuant to the Board's remand instructions, the Veteran was afforded a VA medical examination in August 2017. The examiner clarified that the original diagnosis of an undiagnosed respiratory illness had been in error. Rather, he explained that the Veteran should have been diagnosed as having COPD (chronic bronchitis), not an undiagnosed respiratory illness. He emphasized that the Veteran's current COPD had had its inception during her active service. Based on the foregoing, and affording the Veteran the benefit of the doubt, the Board has recharacterized her service-connected respiratory disability as COPD. Prior to doing so, the Board considered that the law provides that for claims filed after June 9, 1998, a Veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service on the basis that it resulted from an injury or disease attributable to the use of tobacco products by the Veteran during the Veteran's service. 38 U.S.C. § 1103(a); 38 C.F.R. § 3.300(a). As the Veteran filed her claim for service connection for a respiratory disability in May 1998 and was assigned a May 1998 effective date for the award of service connection, the Board finds that 38 U.S.C. § 1103(a) does not apply and that recharacterization of her disability is appropriate. The Board notes that in its April 2015 decision, the Board also remanded the issue of entitlement to service connection for a lumbar spine disorder. While the matter was in remand status, in a September 2017 rating decision, the RO granted service connection for lumbar disc disease and assigned an initial 10 percent rating, effective May 19, 2009. The RO also granted service connection for radiculopathy, right lower extremity, and assigned an initial 10 percent, effective April 24, 2014; and service connection for radiculopathy, left lower extremity, and assigned an initial 10 percent rating, effective August 30, 2017. The grant of service connection for these disabilities constitutes a full award of the benefits sought on appeal with respect to the claim of service connection for a lumbar spine disability. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Absent any indication that the Veteran has submitted a notice of disagreement with the downstream elements of initial rating or effective date, those matters are not in appellate status. Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). FINDINGS OF FACT 1. The clinical evidence of record indicates that the Veteran's service-connected respiratory disability is more appropriately characterized as chronic obstructive pulmonary disease (COPD). 2. The most probative evidence reflects that the Veteran's COPD is no more than mild with pulmonary function testing (PFT) showing FEV1 of 91 percent predicted; FEV1/FVC of 92 percent predicted; and DLCO of 98 percent predicted. CONCLUSION OF LAW The criteria for a compensable rating for COPD are not met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.97, Diagnostic Code 6604 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Neither the Veteran nor her representative has raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Background In a September 2000 rating decision, the RO granted service connection for an undiagnosed respiratory disorder and assigned an initial noncompensable rating, effective May 1, 1998, based on the results of a December 1999 PFT. The Veteran's undiagnosed respiratory disorder was rated under Diagnostic Codes 8866-6602, pertaining to an undiagnosed condition of the trachea and bronchial asthma. That rating has remained in effect to date. As detailed below in the Analysis portion of this decision, the Board finds that the Veteran's disability should be rated under Diagnostic Code 6604. In May 2009, the Veteran filed a claim for an increased rating, stating that her breathing had gotten worse and she now had some rattling. In November 2009, the Veteran was afforded a general VA examination at which she reported intermittent respiratory symptoms over the past 20 years which had worsened in the last year or so. She indicated that she had a history of smoking one pack per day since the age of 21 and that she continued to smoke. She also reported that she was at the end of a cold at the time of the examination and was coughing a bit. Her current complaints included intermittent shortness of breath, dyspnea on exertion, and occasional shortness of breath at rest which will only last a few minutes. She indicated that she was receiving no treatment for any respiratory condition. Pulmonary function testing performed in connection with the examination showed that the technician inaccurately indicated that the Veteran was a nonsmoker. Testing showed FEV1 of 98 percent, FEV1/FVC of 70 percent both pre and post bronchodilator, and DLCO-SB of 84.5 percent. The examiner indicated that the Veteran's level of effort and cooperation was acceptable. Obstruction was not clearly improved after bronchodilators. The diagnosis was pulmonary obstruction, not otherwise specified. As the pulmonary function test findings showed inconsistent results, the RO attempted to obtain clarification as to the Veteran's level of disability. In a December 2009 addendum, the examiner explained that in reviewing the pulmonary function testing, the Veteran had inaccurately given the technician a history of being a nonsmoker, which would give her different predicted values. In addition, her FEV1/FVC was noted to be 70 percent but it appeared that she had only a mild obstruction. Based on the findings, the examiner concluded that the Veteran had a COPD component, which is mild and most likely secondary to her long-term tobacco use. The examiner indicated that with the pulmonary function results, the Veteran's current diagnosis would be COPD, most likely secondary to tobacco use. The examiner emphasized that the Veteran did not have an undiagnosed respiratory disability; rather, her diagnosis was COPD and the FEV1/FVC showed a mild reduction consistent with her mild COPD. Pursuant to the Board's April 2015 remand, the Veteran again underwent VA medical examination in August 2017. In reviewing the record, the examiner noted that the Veteran had been diagnosed with chronic bronchitis in September 1987, and that chronic bronchitis is a variety of COPD. The August 2017 examiner reviewed the Veteran's claims file and noted that, when the Veteran was re-examined in November 2009, that examiner attempted to correct the "undiagnosed respiratory disorder" to reflect the correct diagnoses of COPD (or chronic bronchitis). The August 2017 examiner reiterated that based on the evidence of record and the current examination, that the Veteran's only diagnosis is COPD and that she did not suffer from an undiagnosed respiratory disorder. The examiner further stated that the Veteran is a long-term cigarette smoker (an over 40 pack-year history) and, while she did experience Gulf War exposures to oil well fires and vehicle exhaust, they are minimal compared to her many years of smoking. He noted that the service treatment records reflected that she was seen in service on multiple occasions for upper respiratory infections and chronic bronchitis, diagnoses which were confirmed by history, repeated exams, and chest x-rays. The examiner explained that chronic bronchitis is a variety of COPD. The examiner noted that although the Veteran was relatively asymptomatic at separation, the natural history of chronic bronchitis (especially with ongoing smoking), is that it continues to occasionally flare up and require treatment, yet typically only progress gradually, so that the patient often does not really notice it at first. It seems that this was the case for the Veteran. The examiner noted that the Veteran did not have PFTs done until December 1999 and they were basically normal; however, the results were questionable and the test should have been repeated. Instead of repeating this testing or asking for clarification, a decision was made to award service connection for an undiagnosed respiratory disorder based on the poorly performed PFTs alone. When the Veteran was re-examined in November 2009, the examiner attempted to correct the misperception of undiagnosed respiratory disorder to reflect, correctly, the single diagnosis of COPD (or chronic bronchitis). The August 2017 examiner indicated that "I would re-emphasize: Based on all the above evidence, and my current exam and testing, there is only 1 diagnosis here. The veteran is a long-term cigarette smoker, and was diagnosed WHILE IN SERVICE with chronic bronchitis. It has been mild and still is. Nonetheless, it had its onset while in service and is still present. There is no other diagnosis warranted." In connection with the examination, the Veteran underwent pulmonary function testing which showed pre-bronchodilator results of FEV-1 of 91 percent predicted; FEV-1/FVC of 92 percent predicted; and DLCO of 98 percent predicted. Post-bronchodilator testing was not performed as the prebronchodilator results were normal. The examiner indicated that the test result which most accurately reflected the Veteran's level of disability was FEV-1/FVC. III. Applicable Law Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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. The Veteran's undiagnosed respiratory disorder was originally rated under Diagnostic Codes (DCs) 8866-6602. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on factors such as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. The Board finds that, based on the available evidence discussed above, Diagnostic Code 6604, which evaluates COPD, is most appropriate. Under Diagnostic Code 6604, a 10 percent rating is assigned for 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 rating is assigned 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 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, or; maximum oxygen consumption of 15 to 20 mL/kg/min (with cardiorespiratory limit). A 100 percent rating is assigned for FEV-1 less than 40 percent of predicted value, or; the ratio of FEV-1/FVC less than 40 percent, or; DCLO (SB) 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. When evaluating based on pulmonary function tests (PFTs), post-bronchodilator results are used 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. When there is disparity between the results of different PFTs so that the level of evaluation would differ depending on which test result is used, the Board uses the test result that the examiner states most accurately reflects the level of disability. See 38 C.F.R. § 4.96(d)(5), (6). IV. Analysis Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating. As set forth above, pulmonary function testing conducted in connection with the August 2017 VA medical examination showed pre-bronchodilator results of FEV-1 of 91 percent predicted; FEV-1/FVC of 92 percent predicted; and DLCO of 98 percent predicted. These findings fall within the criteria for a noncompensable rating. The Board notes that the examiner indicated that the test result which most accurately reflected the Veteran's level of disability was FEV-1/FVC. As noted, Diagnostic Code 6604 provides that a FEV-1/FVC reading of 92 percent predicted, such as the Veteran exhibits, warrants a noncompensable rating. The Board has considered the November 2009 pulmonary function test results but finds that they are not probative. As explained by the examiner, because the technician inaccurately noted that the Veteran was a nonsmoker, a different predicted value should have been used to measure the Veteran's results. The examiner estimated, however, that the Veteran's COPD was mild. The Board also notes that the August 2017 VA examiner reviewed the 2009 examination findings and test results and characterized her disability at that time as "very mild." The Board notes that this characterization appears to be consistent with the other evidence of record. The December 1999 pulmonary function test upon which the original award of service connection was based showed results falling within the criteria for a noncompensable rating. The clinical evidence of record shows that the Veteran's respiratory symptoms are no more than mild. She reports only intermittent shortness of breath, dyspnea on exertion, and occasional shortness of breath at rest which will only last a few minutes. According to the most recent VA medical examination in August 2017, she is not on any medications for her respiratory condition. For the foregoing reasons, the Board concludes that the most probative evidence of record, particularly the findings of the August 2017 VA medical examination and pulmonary function testing, indicate that a noncompensable rating has been warranted during the entire period on appeal. ORDER Entitlement to a compensable rating for COPD is denied. ____________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs