Citation Nr: 21065507 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-41 716 DATE: October 26, 2021 ORDER A disability rating greater than 60 percent for the service-connected chronic obstructive pulmonary disease (COPD) with sleep problems prior to August 10, 2018 is denied. A 100 percent disability rating for the service-connected COPD with sleep problems from August 10, 2018 is granted. FINDINGS OF FACT 1. Prior to August 10, 2018, the Veteran's COPD with sleep problems was not manifested by FEV-1 less than 40 percent of predicted value, or FEV-1/FVC less than 40 percent, or DLCO (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 the requirement of outpatient oxygen therapy. 2. From August 10, 2018, the Veteran's COPD with sleep problems has been manifested by FEV-1/FVC less than 40 percent of predicted value. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 60 percent for the service-connected COPD with sleep problems prior to August 10, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.97, Diagnostic Code 6604. 2. The criteria for a disability rating of 100 percent for the service-connected COPD with sleep problems from August 10, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.97, Diagnostic Code 6604. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2019, the Board denied restoration of a 100 percent rating for the service-connected COPD with sleep problems and denied service connection for a sleep disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. Pursuant to a joint motion for partial remand, in a November 2020 Order, the Court remanded that part of that Board decision that denied the restoration for readjudication in accordance with the joint motion. The appeal of the claim for service connection for a sleep disorder was dismissed. In April 2021, the Board found clear and unmistakable error in the November 2013 rating decision that increased the rating for the service-connected COPD with sleep problems from 60 percent to 100 percent, effective from October 1, 2014, and denied restoration of the 100 percent rating. However, the Board granted restoration of the 60 percent rating, effective from October 1, 2014. Then, to ensure due process, the Board remanded the issue of entitlement to a rating greater than 60 percent for COPD with sleep problems for readjudication. Increased RatingCOPD with Sleep Problems Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran filed the current claim for an increased rating for his COPD with sleep problems in January 2013. This service-connected disability is evaluated as 60 percent disabling under Diagnostic Code 6604. 38 C.F.R. § 4.97. To warrant a higher 100 percent rating, his COPD must result in FEV-1 less than 40 percent of predicted value, or the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (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. At an October 2013 VA examination, the Veteran reported increasing dyspnea with exertional activities, productive cough, mild wheezing, and nocturnal dyspnea. A pulmonary function test (PFT) revealed an FEV-1 of 78 percent of predicted value, FEV-1/FVC of 56 percent, and DLCO (SB) of 74 percent of predicted value. The examiner indicated that the Veteran does not have cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or episodes of acute respiratory failure, or require outpatient oxygen therapy. Exercise capacity testing was not indicated. A December 2014 PFT revealed an FEV-1 of 71 percent of predicted value, FEV 1/FVC of 76 percent, and DLCO (SB) of 78 percent of predicted value. At a November 2015 VA examination, the Veteran reported a gradual worsening of his COPD, with constant cough and expectorate, and that he cannot walk upstairs without shortness of breath. The examiner indicated that the Veteran does not have cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or episodes of acute respiratory failure, or require outpatient oxygen therapy. Exercise capacity testing was not indicated. A December 2015 PFT revealed an FEV-1 of 64 percent of predicted value, FEV-1/FVC of 68 percent, and DLCO (SB) of 76 percent of predicted value. An August 2018 VA PFT revealed an FEV-1 of 42 percent of predicted value, FEV 1/FVC of 39 percent, and DLCO (SB) of 39 percent of predicted value. At an October 2018 VA examination, the Veteran reported that his COPD has significantly worsened, having been hospitalized twice with exacerbations, and that he can no longer perform household chores due to his shortness of breath. The examiner cited to the August 2018 PFT. The examiner concluded that the FEV 1/FVC value most accurately reflects the Veteran's level of disability. The examiner indicated that the Veteran does not have cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or episodes of acute respiratory failure, or require outpatient oxygen therapy. Exercise capacity testing was not indicated. Initially, the Board acknowledges the finding of FEV-1/FVC of 39 percent from the August 2018 PFT. This finding warrants a 100 percent rating under Diagnostic Code 6604. Thus, a higher 100 percent rating is warranted for the Veteran's COPD with sleep problems from the date of that PFT, or August 10, 2018. However, as will be discussed below, with no earlier findings to support a 100 percent rating, that is the earliest date for the award of a 100 percent rating. Prior to August 10, 2018, the Veteran's COPD with sleep problems did not result in FEV-1 less than 40 percent of predicted value, FEV-1/FVC less than 40 percent of predicted value, or DLCO (SB) less than 40-percent predicted. None of the PFT results supports such findings. His COPD also did not result in cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or episodes of acute respiratory failure. Lastly, his COPD did not require outpatient oxygen therapy. Thus, prior to August 10, 2018, a disability rating greater than 60 percent is not warranted for the Veteran's COPD with sleep problems. In reaching this decision, the Board notes that the Veteran is competent to give evidence about observable symptoms such as difficulty breathing. Layno v. Brown, 6 Vet. App. 465 (1994). However, the objective evidence fails to show that he has the necessary PFT findings to warrant a higher 100 percent rating at any time prior to August 10, 2018. In addition, the Board notes that the Veteran is also service-connected for sleep problems associated with his COPD. However, the record does not show that his sleep problems have resulted in any compensable manifestations. In an October 2013 VA examination report on COPD, the examiner concluded that the Veteran's COPD does not generally produce insomnia. In a separate October 2013 VA examination report on mental disorders, the examiner concluded that the Veteran does not meet the criteria for a diagnosis of insomnia. Indeed, this examiner explained that, to have insomnia secondary to a medical condition, the insomnia needs to be severe enough to warrant independent intervention, which is not so in the Veteran's case. Moreover, the Board denied service connection for a sleep disorder in the November 2019 decision, which the Veteran appealed to the Court but did not pursue and was dismissed. In sum, while the Veteran has sleep problems, they do not warrant a separate compensable rating. In conclusion, the Board awards a higher rating of 100 percent for the Veteran's service-connected COPD with sleep problems from August 10, 2018. However, as the preponderance of the evidence is against a disability rating greater than 60 percent prior to that date, that aspect of the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.