Citation Nr: 21062598 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 18-54 156 DATE: October 8, 2021 ORDER Entitlement to a 30 percent rating for obstructive airway disease is granted, throughout (from January 9, 2018). FINDING OF FACT Throughout, the Veteran's obstructive airway disease has been shown to result in DLCO (SB) 56-to 65-percent predicted; FEV-1 of 40-to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40-to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit) is not shown. CONCLUSION OF LAW A 30 percent (but no higher) rating is warranted for obstructive airway disease, throughout (from January 9, 2018). 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.20, 4.97, Diagnostic Code (Code) 6603. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from February 1991 to April 1994. This matter is before the Board on appeal from an October 2018 Department of Veterans Affairs (VA) rating decision, which reduced the rating for obstructive airway disease from 10 percent to 0 percent effective January 1, 2019. In January 2021, a videoconference hearing was held before the undersigned; a transcript is in the record. In February 2021, the matter was remanded for additional development. A May 2021 rating decision granted a 10 percent rating for obstructive airway disease effective April 27, 2021. In June 2021, the matter was again remanded for additional development. The Board's previous remands also addressed the matter of the propriety of the reduction in the rating for obstructive airway disease effective January 1, 2019. An August 2021 rating decision determined that the rating reduction for obstructive airway disease from 10 percent to 0 percent from January 1, 2019 to April 27, 2021 was not warranted, resolving that matter and restoring the rating to 10 percent throughout. Therefore, the matter remaining for consideration is entitlement to a rating in excess of 10 percent for obstructive airway disease. Entitlement to a 30 percent for obstructive airway disease is granted. On February 2018 VA examination, the Veteran reported taking no medications for pulmonary disease. He used Flonase as needed for allergic rhinitis. He denied respiratory symptoms that cause functional impact. The examiner opined that the Veteran's obstructive airway disease is resolved, without health or functional impact in over 10 years. A chest X-ray was normal. Prebronchodilator, pulmonary function testing showed FVC of 102 percent predicted; FEV-1 of 101 percent predicted; FEV-1/FVC of 74 percent predicted; and DLCO of 60 percent predicted. Post-bronchodilator, FVC was 101 percent of predicted; FEV-1 was 108 percent of predicted; and FEV-1/FVC was 79 percent of predicted. The examiner opined that FVC percent predicted most accurately reflects the Veteran's level of disability. Based on this evidence, the October 2018 rating decision on appeal reduced the rating for obstructive airway disease from 10 percent to 0 percent effective January 1, 2019. In his November 2018 notice of disagreement, the Veteran stated that his condition is ongoing, is treated with medication and has required emergency room visits. On January 2019 VA examination, the Veteran reported using an albuterol metered dose inhaler as needed and an Advair metered dose inhaler daily. A chest X-ray was normal. Pulmonary function testing showed FVC of 108 percent predicted; FEV-1 of 106 percent predicted; FEV-1/FVC of 98 percent predicted. The examiner opined that FEV-1 percent predicted most accurately reflects the Veteran's level of disability. Post-bronchodilator testing was not completed because pre-bronchodilator results were normal. The examiner opined that DLCO testing was not completed because it was not indicated in the Veteran's particular case; no further explanation was given for this statement. On April 27, 2021 VA examination, the Veteran reported having symptoms of shortness of breath, chest tightness, and wheezing, treated intermittently with an albuterol inhaler. A chest X-ray was normal, with clear lungs and no acute airspace disease or pneumothorax, and normal heart size. Prebronchodilator, pulmonary function testing showed FVC of 84 percent predicted; FEV-1 of 84 percent predicted; FEV-1/FVC of 78 percent predicted. Post-bronchodilator, FVC was 80 percent of predicted; FEV-1 was 77 percent of predicted; and FEV-1/FVC was 74 percent of predicted. The examiner opined that FEV-1/FVC most accurately reflects the Veteran's level of disability. The examiner opined that DLCO testing was not completed because it was not indicated in the Veteran's particular case; no further explanation was given for this statement. Based on this evidence, a May 2021 rating decision increased the rating for obstructive airway disease to 10 percent effective April 27, 2021. On July 2021 VA record review and advisory medical opinion, the provider opined that DLCO testing is appropriate when there is evidence of significant obstructive breathing pattern, restrictive breathing pattern, or evidence of damage to the lung parenchyma or the presence of a lung pathology that can explain an abnormal DLCO. The provider opined that a review of the Veteran's medical treatment records pertaining to his obstructive airway disease shows a history of normal pulmonary function tests, and recent primary care visit on May 28, 2021 noted no complaints of dyspnea and no indication of a worsening pulmonary condition. The provider observed that there is no history of exacerbations, no history of pulmonary distress, imaging of the lungs have been normal, and no objective evidence of parenchymal damage or other lung conditions related to obstructive airway disease has been found. The provider opined that the Veteran's examinations and medical records have shown the condition has been stable, noting that the Veteran's treatment for his airway condition has been on symptomatic treatment with albuterol on an as needed basis, which indicates the pulmonary condition is mild and stable. The provider further noted that the treatment records also show the Veteran is currently using tobacco, and opined that this has been found to lower DLCO. The provider opined that the DLCO of 60 noted on February 6, 2018 examination is a mild decrease or within lower limit of normal, and spirometry or pulmonary function testing remains a more reliable, reproducible gauge in assessing pulmonary conditions. The provider opined that the parameter that bests describes an obstructive airway disease is the FEV1/FVC and less likely DLCO. Based on this evidence, an August 2021 rating decision determined that the reduction in the rating from 10 percent to 0 percent from January 1, 2019 to April 27, 2021 for obstructive airway disease was not warranted, and restored a 10 percent rating throughout that period. Additional VA treatment records throughout show symptoms largely similar to those found on the VA examinations described above. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims for increase, as here, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability for a period beginning one year before the claim was filed until VA makes a final decision on the claim. However, separate ratings may be assigned for separate periods of time based on facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's obstructive airway disease has been rated under Code 6603, for pulmonary emphysema. Under that Code, a 10 percent rating is warranted for Forced Expiratory Volume in one second (FEV-1) of 71-to 80-percent predicted, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66-to 80-percent predicted. A 30 percent rating is warranted 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 warranted for FEV-1 of 40-to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40-to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is warranted for FEV-1 of less than 40 percent of predicted value, or; FEV-1/FVC of less than 40 percent, or; DLCO (SB) of 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. At the outset, the Board notes that despite the July 2021 VA reviewing provider's opinion that the parameter that best describes an obstructive airway disease is the FEV1/FVC and less likely the DLCO, that of itself is not dispositive of the issue; DLCO findings must be considered. The Board finds that, throughout (from January 9, 2018), the reports of VA examinations, VA treatment records, and lay statements, overall, reasonably support that the Veteran's obstructive airways disease results in DLCO 56- to 65-percent predicted, warranting a 30 percent rating under Code 6603. As noted by the VA examiners/reviewing provider and reported by the Veteran, the obstructive airway disease has been largely stable throughout the appeal period. The Board finds that the overall evidence reasonably demonstrates that the disability picture presented by the functional impairment associated with/due to the service-connected obstructive airway disease is found to result in DLCO of 56- to 65-predicted, and warrants a 30 percent rating under Code 6603, and that such rating is warranted throughout. As FEV-1 of 40-to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40-to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), is not shown at any time, a still higher (60 percent) rating is not warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.