Citation Nr: 21064019 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-53 729A DATE: October 18, 2021 ORDER Entitlement to an increased (compensable) disability rating for bronchitis is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for right patellofemoral syndrome (PFS) with degenerative joint disease (DJD) is remanded. Entitlement to a disability rating in excess of 10 percent for left PFS with DJD status post arthroscopic surgery is remanded. FINDING OF FACT The preponderance of the evidence, including the competent medical evidence of record, indicates that the Veteran's bronchitis has not met the criteria for a compensable rating. CONCLUSION OF LAW The criteria for an increased (compensable) disability rating for chronic bronchitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.97, Diagnostic Code (DC) 6600. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from December 1985 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2014 and December 2020 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a July 2021 hearing before the Board of Veterans' Appeals (Board). During this hearing, the Veteran waived Regional Office review of new evidence added to the record. The Veteran asserts that their current asthma arose during or as a result of active service, including as secondary to her service-connected bronchitis. See July 2021 Board hearing. December 2020 VA treatment records reflect asthma as an active medical condition. This claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Accordingly, this claim is referred to the AOJ for adjudication in the first instance. Bronchitis The Veteran asserts that her bronchitis is more severe than is reflected by her noncompensable (zero percent) disability rating. Disability ratings are determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board may consider whether separate ratings may be assigned for separate periods of time a practice known as "staged ratings," whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's noncompensable rating was assigned pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6600, which applies to chronic bronchitis. Ratings under these criteria depend primarily on the results of pulmonary function tests (PFTs). A 10 percent rating requires FEV-1 of 71 to 80 percent predicted, or FEV-1/FVC of 71 to 80 percent, or DLCO (SB) of 66 to 80 percent predicted. Id. A higher 30 percent rating requires an FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or DLCO (SB) of 56 to 65 percent predicted. Id. Even higher ratings of 60 percent or 100 percent are available when PFT results are lower. 38 C.F.R. § 4.96 provides additional guidance about rating service-connected respiratory disorders. Subsection (d)(5) of the regulation indicates that, when evaluating a respiratory disorder based on pulmonary function tests, "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." According to subsection (d)(6), "When there is a disparity between the results of different PFT's (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test is used, use the test result that the examiner states most accurately reflects the level of disability." In this case, the Veteran filed a claim for service connection for bronchitis in April 2014. During the Veteran's September 2014 VA examination for respiratory conditions, the VA examiner indicated that she was diagnosed with chronic mild bronchitis in 1988. Her condition did not require the use of oral or parenteral corticosteroid medications. She did require intermittent inhalational bronchodilator therapy. Pulmonary function testing (PFT) revealed the following results: pre-bronchodilator: FEV-1: 89 percent predicted, FVC: 88 percent predicted, FEV-1/FVC: 80 percent predicted; post-bronchodilator: FEV-1: 84 percent predicted, FVC: 85 percent predicted, FEV-1/FVC: 79 percent predicted. The examiner indicated that her FEV-1 percentage most accurately reflected her current pulmonary function. The found that her condition did not affect her ability to work. In an August 2015 buddy lay statement, the Veteran's coworker stated that the Veteran struggled to breathe when they went hiking together. She also had to quit a job due to her respiratory problems. In a second August 2015 buddy lay statement, another coworker asserted that the Veteran experienced a chronic cough and extreme shortness of breath. In an October 2016 statement in support of her claim, the Veteran stated that she was unable to perform strenuous activities such as hiking and sports due to her difficulty breathing and shortness of breath. In a November 2016 buddy lay statement, the Veteran's spouse stated that she struggled to perform physical activities, including climbing stairs, due to her breathing problems. During the Veteran's March 2018 VA examination for respiratory conditions, the VA examiner indicated that her condition did not require the use of oral or parenteral corticosteroid medications. She did not require the use of inhaled oral medications. Pulmonary function testing (PFT) revealed the following results: pre-bronchodilator: FEV-1: 61 percent predicted, FVC: 65 percent predicted, FEV-1/FVC: 93 percent predicted; post-bronchodilator: FEV-1: 82 percent predicted, FVC: 84 percent predicted, FEV-1/FVC: 97 percent predicted. The examiner indicated that her FEV-1/FVC percentage most accurately reflected her current pulmonary function. The found that her condition did affect her ability to work. The examiner also stated that, based on a March 2018 x-ray, there was no evidence of bronchitis. In an October 2018 buddy lay statements, the Veteran's neighbors stated that the Veteran was no longer able to perform basic tasks like home maintenance and yardwork and struggled to do activities like walking on the beach. April 2020 VA treatment records reflect treatment for asthma. In an August 2020 statement in support of her claim, the Veteran asserted that asthma was either the same condition she had experienced since service or it was a development of that condition. She asked for a new VA examination to confirm whether the condition was related to service or not. She also stated that she was prescribed albuterol bronchodilators every 4 hours for her asthma condition, which she asserted entitled her to a 30 percent disability rating. During the Veteran's October 2020 VA examination for respiratory conditions, the VA examiner noted a diagnosis for chronic bronchitis dating to 1988, but they did not indicate the Veteran was diagnosed with asthma. They noted that she needed to use her albuterol inhaler 2 to 3 times per day. Her condition did not require the use of oral or parenteral corticosteroid medications. She did require the use of daily inhalational bronchodilator therapy. Pulmonary function testing (PFT) revealed the following results: pre-bronchodilator: FEV-1: 85 percent predicted, FVC: 78 percent predicted, FEV-1/FVC: 108 percent predicted; post-bronchodilator: FEV-1: 89 percent predicted, FVC: 77 percent predicted, FEV-1/FVC: 108 percent predicted. The examiner indicated that her FEV-1 percentage most accurately reflected her current pulmonary function. The found that her condition limited her to light or sedentary work. A December 2020 pulmonary function test reflected the following results: pre-albuterol: 81.17 percent; post-albuterol: 86.71 percent. December 2020 VA treatment records reflect asthma as an active medical problem for the Veteran. During her July 2021 Board hearing, the Veteran testified that her bronchitis was more severe than was reflected by her current evaluation. She also believed her condition was more accurately diagnosed as asthma, or she was positive for both respiratory conditions. While the Veteran is competent to observe her bronchitis symptoms, she does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his bronchitis symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the preponderance of the evidence is against the Veteran's claim for an increased rating for her bronchitis. During the September 2014 VA examination, the Board notes that the Veteran's PFT revealed a pre-bronchodilator FEV-1/FVC of 80 percent predicted and a post-bronchodilator and a FEV-1/FVC of 79 percent predicted. However, the examiner indicated that her FEV-1 84 percent score most accurately reflected her current pulmonary function. Accordingly, the Board must use this score to evaluate the appropriate disability rating for that period. See 38 C.F.R. § 4.96(d)(6). Second, while the March 2018 VA examination revealed pre-bronchodilator scores that meet the criteria for a compensable evaluation, the Veteran's post-bronchodilators scores do not meet the criteria for a compensable evaluation. Under 38 C.F.R. § 4.96(d)(5), when evaluating PFTs, post-bronchodilator scores must be used in evaluating the appropriate evaluation unless the post-bronchodilator scores are poorer than pre-bronchodilator scores. Finally, during the Veteran's October 2020 VA examination for respiratory conditions, the Veteran's post-bronchodilator FVC was 77 percent predicted. However, the examiner indicated that her FEV-1 percentage most accurately reflected her current pulmonary function, and that score was 89 percent predicted. Accordingly, the Board must use this score to evaluate the appropriate disability rating for that period. See 38 C.F.R. § 4.96(d)(6). Based on these facts, the appropriate disability rating according to the competent medical evidence remains a zero percent or a noncompensable evaluation. While the Board acknowledges the lay statements by the Veteran and her friends and family indicating that she struggles to perform basic activities and to exercise as a result of her respiratory condition, the medical evidence of record does not indicate that her condition is severe enough to warrant a compensable rating under DC 6600 at any time during the period on appeal. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim. Accordingly, the claim for an increased rating for bronchitis is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). REASONS FOR REMAND Right and left knee disabilities The Veteran asserts that her right and left knee disabilities are more severe than is reflected by her current evaluations. March and April 2021 VA treatment records reflect the Veteran's right knee disability worsening. April 2021 private treatment records reflect the Veteran developing limitation of motion in her right knee. During the July 2021 Board hearing, the Veteran testified that her right knee had worsened since her last VA examination exam. While the Veteran did not believe her left knee had worsened, her testimony indicated that she might have developed some degree of limitation of motion in her left knee. Accordingly, these claims must be remanded so that the Veteran can be afforded a new VA examination to assess the current severity of her right and left knee disabilities. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination by an examiner with appropriate expertise to assess the current severity of her service-connected right and left knee disabilities. The claims folder must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. The most up-to-date Disability Benefits Questionnaire must be used. Regarding the orthopedic manifestations, the examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected body part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing for the right and left knees. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.