Citation Nr: A21017272 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 200528-89906 DATE: October 26, 2021 ORDER Entitlement to an initial rating of 60 percent, but no higher, for chronic obstructive pulmonary disease (COPD), is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's COPD was productive of a decrease in pulmonary function testing (PFT), with findings of forced expiratory volume in one second (FEV-1) post-bronchodilator of 53 percent of predicted value. The November 2015 VA examiner indicated this test result most accurately reflected the Veteran's level of disability. CONCLUSION OF LAW The criteria for an initial rating of 60 percent, but no higher, for COPD, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.97, Diagnostic Code (DC) 6604. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1981 to November 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the hearing docket. In December 2020, the Veteran's attorney requested that her letter be treated as a memo in lieu of a hearing in the matter. In April 2021, in response to a letter scheduling a virtual hearing, the Veteran sent correspondence indicating his attorney had sent a memo in lieu of a hearing. The Board finds the Veteran withdrew his hearing request December 17, 2020, when his attorney's letter memo was received. See 38 C.F.R. § 20.704(e). Therefore, the Board may only consider the evidence of record at the time of the May 2020 rating decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal. 38 C.F.R. § 20.302(b). Entitlement to an initial rating for COPD in excess of 10 percent The Veteran filed his claim for service connection for COPD in December 2013. In her December 2020 letter, the Veteran's attorney argued the Veteran is entitled to a 60 percent rating based on the VA's November 2015 examination. The Board agrees. 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. Part IV. If two evaluations are potentially applicable, 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 reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's COPD is rated under 38 C.F.R. § 4.97, DC 6604, which provides a 10 percent rating for an FEV-1 of 71- to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80 percent predicted. A 30 percent rating is assignable for an 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 assignable for an 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 assignable for an FEV-1 less than 40 percent of predicted value, or the ratio of 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 for outpatient oxygen therapy. 38 C.F.R. § 4.97, DC 6604. Post-bronchodilator results are required when pulmonary function tests are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. See 38 C.F.R. § 4.96 (d)(4). In applying the rating criteria, post-bronchodilator results are to be used unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre-bronchodilator values should be used for rating purposes. 38 C.F.R. § 4.96 (d)(5). 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 result is used, the test result that the examiner states most accurately reflects the level of disability should be used. 38 C.F.R. § 4.96(d). Pulmonary function testing performed at the November 2015 VA examination revealed post-bronchodilator FEV-1 of 53 percent predicted. The examiner specified that this test result most accurately reflected the Veteran's level of disability. Considering this evidence, the Board finds that a rating of 60 percent is warranted. The record does not include probative evidence that reflects the Veteran meets the requirements for a higher rating. The Board notes that the Veteran's attorney pointed to additional pulmonary function testing from December 2007 that included a FEV1 of 30 percent predicted. However, this testing does not include post-bronchodilator studies, or explain why such studies should not be done, as required for rating purposes. 38 C.F.R. § 4.96(d). Additionally, the testing predates the Veteran's application by six years and has little probative value for the period on appeal. Private treatment records from November 2020 include spirometry results. While these results also do not meet the requirements for rating purposes, they include FEV1 of 44 percent, suggesting that more recent testing does not reflect that a higher rating is warranted for the Veteran. A rating in excess of 60 percent is denied. REASONS FOR REMAND Entitlement to a TDIU The evidence of record raises a claim of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447. Specifically, in a February 2019 letter, a physician noted the Veteran had tried various jobs, but because of frequent pulmonary flare ups he had to miss too many days of work and due to his "severe pulmonary situation" he could not seek and maintain any gainful employment. The Board therefore finds the Veteran has reasonably raised a claim for TDIU per Rice. The AOJ has performed no development of this issue, including providing the Veteran with a VA Form 21-8940. Considering this duty to assist error occurred prior to the May 2020 rating decision, the Board finds that a remand is warranted. 38 C.F.R. § 20.802. The matter is REMANDED for the following action: Provide the Veteran and his representative with notice concerning how to substantiate the claim for a TDIU, to include providing him with a VA Form 21-8940. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.