Citation Nr: 21002268 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-18 223 DATE: January 13, 2021 REMANDED Entitlement to an increased rating for chronic obstructive pulmonary disease (COPD) and sleep apnea in excess of 50 percent prior to September 10, 2019, and in excess of 60 percent thereafter is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) based on a service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1980 to February 1990 and from September 1990 to January 2010. The matter is on appeal from a March 2014 rating decision. The claims were remanded by the Board of Veterans’ Appeals (Board) in November 2018. While the claims were pending on appeal, in an October 2020 rating decision, the RO increased the disability rating for the Veteran’s COPD and sleep apnea from 50 to 60 percent disabling, effective September 10, 2019. Although an increased rating was granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to an increased rating for chronic obstructive pulmonary disease (COPD) and sleep apnea in excess of 50 percent prior to September 10, 2019 and in excess of 60 percent thereafter is remanded. The Veteran contends that he is entitled to an increased rating for COPD and sleep apnea in excess of 50 percent prior to September 10, 2019 and in excess of 60 percent thereafter. The Veteran’s disability is currently rated under DC 6604-6847. As noted in the November 2018 Board decision, 38 C.F.R. § 4.96 (d) provides that when evaluating based on pulmonary function testing (PFTs), post-bronchodilator results are to be used in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. Turning to the relevant evidence of record, an April 3, 2013 private medical record from Dr. D. P. notes that PFT showed post-bronchodilator values of FEV-1 at 67%, FVC at 95%, and FEV-1/FVC ratio 57. DLCO was 90% predicted. A September 28, 2013 private medical record from Dr. P. showed a FEV-1 of 56, rising to 67 compatible with moderate obstructive lung disease. A PFT performed on January 8, 2014 showed post-bronchodilator results of an FVC of 97% predicted, FEV-1 of 66% predicted, FEV-1/FVC of 56%, and no value given for DLCO. A May 13, 2015 PFT showed pre-bronchodilator results of FVC of 72%, an FEV-1 of 47% and a FEV1/FVC of 53%. A September 2019 PFT showed post-bronchodilator results of FVC of 88% predicted, FEV-1 of 55% predicted, and FEV-1/FVC of 50%. An October 7, 2020 VA Addendum/Clarification DBQ states the test result which most accurately reflects the COPD disability is the FEV-1 of 55%. Furthermore, diffusing capacity is 72%. A letter from Dr. J. F. D. received by VA on November 2019 reads that the Veteran’s last spirometry reported an FEV-1 pre of 47% predicted and post bronchodilator of 55%. As noted in the November 2018 Board decision, there is no value under the post-bronchodilator results section of the May 13, 2015 medical record. However, in the December 2020 Appellate Brief, the Veteran’s representative argues that the general pattern in the Veteran’s test results show that his post-bronchodilator FEV-1/FVC is consistently between 1 or 2 points more than his pre- bronchodilator FEV-1/FVC. The Veteran’s representative further argues that it is therefore reasonable to assume that had a post-bronchodilator FEV-1/FVC been performed on May 13, 2015, the post-bronchodilator FEV1/FVC would had been 54 or 55. This would be significant because a 54 or 55 FEV-1/FVC post-bronchodilator PFT result would satisfy the criteria for a higher rating of 60 percent starting from May 13, 2015, instead of the current effective date of September 10, 2019. VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In view of the foregoing, the Board finds that remand is warranted to obtain, if possible, a retrospective opinion from an expert determining whether it is reasonable to assume that had a post-bronchodilator FEV-1/FVC been performed on May 13, 2015, the post-bronchodilator FEV-1/FVC would have been 54 or 55. 2. Entitlement to a total disability rating for individual unemployability (TDIU) based on a service-connected disability is remanded. The claim for entitlement to a TDIU should also be remanded. See Form 9. A determination on the increased rating claim for COPD and sleep apnea could have a significant impact on the outcome of the TDIU issue, and therefore, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Forward the Veteran’s record (including this Remand decision) to a qualified independent medical expert to address the following: Whether it is at least as likely as not (probability of at least 50 percent) that had a post-bronchodilator FEV-1/FVC been performed on May 13, 2015, the post-bronchodilator FEV-1/FVC would had been 54 or 55. The discussion should specifically address the Veteran’s representative’s argument made in the December 2020 Appellate Brief that the general pattern in the Veteran’s test results shows that his post-bronchodilator FEV-1/FVC is consistently between 1 or 2 points more than his pre-bronchodilator FEV-1/FVC; therefore, it is at least as likely as not that had a post-bronchodilator FEV-1/FVC been performed on May 13, 2015, the post-bronchodilator FEV-1/FVC would had been 54 or 55. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against the conclusion. 2. If the requested opinion cannot be rendered without resorting to speculation, the examiners must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If utilizing references within the electronic claims file, the examiner should clearly provide an identifier. To this end, the Board notes that an examiner may have an obligation to conduct further research in medical literature depending on the evidence in the record at the time of examination. The examiner should also be aware that in rendering an opinion, it must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. (Continued on the next page)   If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.