Citation Nr: 1815690 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-32 332A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an earlier effective date for service-connected chronic obstructive pulmonary disease (COPD), currently established from September 19, 2002. 2. Entitlement to an evaluation of COPD in excess of 30 percent prior to May 9, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G.C., Associate Counsel. INTRODUCTION The Veteran served on active duty from January 1958 to August 1961. This matter comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran filed a formal claim for service connection for COPD which was received by VA on September 19, 2002. 2. Throughout the appeal period prior to May 9, 2013, the Veteran's COPD has approximated Forced Vital Capacity (FEV-1) scores of 40 to 55 percent predicted; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method scores of 40 to 55 percent predicted; or FEV-1/FVC ratios of 40 to 55 percent, on objective clinical evaluation. Maximum oxygen consumption was not 15 to 20 mL/kg/min. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to September 19, 2002, for the grant of service connection for COPD are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for an evaluation in excess of 60 percent, but no higher, for COPD have been met prior to May 9, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.97, Diagnostic Code 6604 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1). In July 2012, the RO mailed the Veteran a VCAA letter detailing the evidentiary requirements of a service connection claim, the evidence that the Veteran should send to VA, and VA's responsibilities to assist the Veteran. The Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notice or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. §5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). The Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record contains in-service treatment records, outpatient treatment records, and military personnel records. No other relevant records have been identified and are outstanding. For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records have been fulfilled with respect to the issues on appeal. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded a VA medical examination in May 2013. Based on the examination and the records, the VA medical examiner was able to provide an adequate opinion. Accordingly, the Board determines that the VA's duty to provide a medical examination and to obtain a medical opinion has been satisfied. In conclusion, the Board finds that the duty to assist in this case is satisfied since VA has obtained all relevant identified records and provided the Veteran with VA medical examinations. 38 C.F.R. § 3.159(c)(4). Further, the Board finds the available medical evidence is sufficient for adequate determinations; and there has been substantial compliance with all pertinent VA law and regulations, as to not cause any prejudice to the Veteran. Earlier Effective Date Generally, the effective date of an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application." 38 U.S.C.A. § 5110 (a). The effective date for increased rating shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, the effective date for the increase is the date of receipt of the claim for increase. 38 U.S.C. § 5110 (b)(2) ; 38 C.F.R. § 3.400 (o)(2). VA regulations provide that the effective date for increased ratings shall be the "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (o)(1). A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a) (2017); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran's duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines "application" as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim is received by VA. 38 C.F.R. § 3.1(r) (2017). Historically, the Veteran's claim for service connection for COPD was granted in a September 2013 rating decision, awarding him a 20 percent rating effective September 19, 2002, the day the claim was received. The evidence simply does not show that the Veteran filed a claim prior to September 19, 2002. As September 19, 2002 is the date the Veteran filed his initial claim for service connection for COPD, there is no basis to grant an earlier effective date as a matter of law. See 38 C.F.R. § 3.400(o)(1). In short, as there is no evidence of record that the Veteran filed a formal or informal claim at any point before September 19, 2002, an earlier effective date is simply not warranted. This is the earliest effective date possible based upon the facts in this case and the law and regulations. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Increased Rating for COPD Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations should 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran contends he is entitled to an evaluation of 60 percent for the period prior to May 9, 2013 for his service-connected COPD. (He was awarded a 100 percent schedular rating, the highest available, as of that date.) The basis of the Veteran's argument is that test results from Dr. J.H. show that in June 2002, he had an FEV-1 of 49 percent; in August 2002, he had an FEV-1 of 51 percent; and in September 2002, he had an FEV-1 of 64 percent-which he contends entitles him to the 60 percent disability evaluation under the criteria of 38 C.F.R. § 4.97, Diagnostic Code 6604. See September 2014 VA Form 9. Under Diagnostic Code 6604 pertaining to chronic obstructive pulmonary disease, a 30 percent evaluation is warranted for pulmonary function tests showing FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO) 56 to 65 percent predicted. A 60 percent evaluation requires FEV-1 of 40 to 55 percent predicted, or; 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 (with cardiorespiratory limit). A 100 percent evaluation is warranted for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO 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. 38 C.F.R. § 4.97 (2017), Diagnostic Code 6604. 38 C.F.R. § 4.96 (d) addresses special provisions for applying the evaluation criteria for COPD and certain other respiratory diseases. In relevant part, the provisions are as follows: (5) When evaluating based on PFT's, 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. (6) When there is a disparity between the results of different PFT's (FEV-1, FVC, etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96 (d)(2), (5)-(6). In consideration of the rating period on appeal, the relevant evidence which measured the Veteran's pulmonary function consists of the April 2002, June 2002, August 2002 and September 2002 pulmonology records from Dr. J.H.; a September 2002 pulmonology note from Dr. D.H.; A May 2010 CT scan of the chest and associated intake report; and a May 2013 VA respiratory examination. In April 2002, Dr. J.H. conducted pulmonary function testing, which revealed FVC of 78 percent of predicted value; FEV-1 of 53 percent of predicted value; and FEV-1/FVC of 68 percent of predicted value. In June 2002, Dr. J.H. again conducted pulmonary function testing, which revealed FVC of 79 percent of predicted value; FEV-1 of 52 percent of predicted value; and FEV-1/FVC of 66 percent of predicted value. In August 2002, Dr. J.H. confirmed the Veteran's diagnosis of moderate COPD. Pulmonary function testing revealed FVC of 69 percent of predicted value; FEV-1 of 51 percent of predicted value; and FEV-1/FVC of 59 percent of predicted value. In September 2002, Dr. J.H conducted another pulmonary function test, which revealed FVC of 85 percent of predicted value; FEV-1 of 64 percent of predicted value; and FEV-1/FVC of 60 percent of predicted value. Also of record is a September 2002 letter from Dr. J.H., who expressed that the Veteran had mild to moderate COPD, with symptoms accentuated at altitude, such that it impacts his ability to work as well as his safety. A May 2010 hospital note is of record with an associated CT scan of the chest. Dr. B.W., pertinently, not only confirms COPD as the Veteran's diagnosis, but also noted that upon spirometry testing, FEV-1 was 48 percent of predicted value. The Veteran was afforded a VA examination in May 2013. The final assessment was confirmation of the Veteran's COPD. The examiner noted pertinently that in March 2010, a CT scan was reviewed, which documented FEV-1 of 53 percent. No pulmonary function testing was completed due to equipment malfunction. However, a May 2013 chest x-ray is of record with an associated private pulmonology report. Pertinently, Dr. B.W., who wrote the report, indicates that the Veteran's FEV-1 is 53 percent. Based on the pulmonary function testing contained in the treatment reports of record, the Board finds that an evaluation of 60 percent, but no more, is warranted for the period between September 19, 2002 and May 9, 2013 for service-connected COPD. At the outset, the Board acknowledges that some of the FEV-1 results were higher than those required by 38 C.F.R. § 4.97, DC 6604. Specifically, reference is made to a finding of FEV-1 of 64 percent of predicted value in September 2002. However, this high value is an exception to the otherwise low FEV-1 values noted by Dr. J.H. in April 2002 (53 percent); in June 2002 (52 percent); and in August 2002 (51 percent). Furthermore, the Board's assessment of the Veteran's disability picture is bolstered by Dr. J.H.'s 2002 letter, wherein it is stated that the Veteran's COPD has symptoms which could be dangerous in that they may impact his ability to work and his safety, especially at altitude. Furthermore, the Board notes the private note from Dr. B.W. dated in May 2010, reflecting an FEV-1 score of 48 percent. The May 2013 VA examiner corroborates the FEV-1 score range for the same period by noting his review of a CT scan report showing an FEV-1 of 53 percent in March 2010. Therefore, the Board observes that the majority of the Veteran's pulmonary function results are consistent with a 60 percent rating, though some, albeit a minority, fall within the 30 percent range. Accordingly, the Board finds that the evidence is at the very least in equipoise as to the claim for an increased evaluation for COPD, and an increased rating of 60 percent for COPD is therefore granted. Howver, the Board finds that the available evidence does not show that, at any point during the appeal period prior to May 9, 2013, the Veteran experienced FEV-1, FEV-1/FVC, or DLCO 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. Thus, a rating of 100 percent is not warranted at any point prior to May 9, 2013. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an earlier effective date prior to September 19, 2002, for service-connected COPD is denied. Entitlement to an evaluation of 60 percent for service-connected COPD prior to May 9, 2013, is granted. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs