Citation Nr: 21071054 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-41 104 DATE: November 29, 2021 REMANDED The claim for an increased disability rating in excess of 60 percent for service-connected chronic obstructive pulmonary disease (a progression from bronchitis) is remanded. Entitlement to a total disability evaluation based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on Active Duty for Training (ACDUTRA) in the United States Army National Guard from November 1957 until his honorable discharge in March 1958, and he had additional periods of ACDUTRA totaling three months and twenty-three days. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from a January 2014 rating decision by a Regional Office of the United States Department of Veterans Affairs (VA),which initially denied an increased disability rating for service-connected chronic obstructive pulmonary disease (COPD), a progression from bronchitis. In a subsequent July 2020 rating decision, a VA Regional Office assigned a 60 percent disability rating for the Veteran's COPD effective March 28, 2013 (the date he filed his claim for an increased rating). In June 2018, the Board remanded the Veteran's case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to: 1. Schedule the Veteran for a hearing before the Board pursuant to his request. 2. Obtain outstanding VA medical records. 3. Inform the Veteran that he may identify additional private medical records that he wished VA to obtain. 4. Schedule the Veteran for a VA examination to address the severity of his COPD. 5. Adjudicate the claim for entitlement to a total disability rating based on individual unemployability. VA scheduled an in-person travel Board hearing for October 5, 2021, before a Veterans Law Judge other than the undersigned Judge. Notice was provided to the Veteran in a letter dated August 21, 2021. The Veteran did not appear for the hearing, and he provided no explanation to VA for his failure to appear. VA has not received any correspondence from the Veteran as to his hearing. Thus, the Board will continue to adjudicate his appeal. 38 C.F.R. § 20.704(d) (providing that if a claimant "fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn."). The VA Regional Office obtained the Veteran's additional VA and private medical records and associated them with his claims file. The VA Regional Office obtained a VA-contracted examination assessing the severity of the Veteran's COPD. Unfortunately, for the reasons explained below, the examination is not sufficient at this time. Thus, remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. The claim for an increased disability rating in excess of 60 percent for service-connected chronic obstructive pulmonary disease (a progression from bronchitis) is remanded. The Board notes that the Veteran's COPD is rated under 38 C.F.R. § 4.97, Diagnostic Code 6604, which provides, in relevant part: Rating (%) 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. 100 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). 60 Diagnostic Code 6604 does provide for ratings lower than 60 percent. In this case, however, the Veteran received a disability rating of 60 percent. Thus, an analysis of the ratings lower than 60 percent is unwarranted, absent legal and factual bases to issue a reduction in the Veteran's current rating. See 38 C.F.R. § 3.344. Consistent with the Board's June 2018 remand directive, the VA Regional Office obtained a December 2019 VA-contracted examination assessing the severity of the Veterans' COPD. Notably, while the examiner performed pulmonary function testing, he did not conduct exercise capacity testing. No explanation was offered as to why exercise capacity testing was not performed. The VA Regional Office awarded the Veteran an increased disability rating of 60 percent based on that examination. The VA Regional Office obtained a second VA-contracted examination dated July 2020. That examination was conducted using the Acceptable Clinical Evidence (ACE) process. This examination allowed the examiner to review the Veteran's existing medical records instead of performing an in-person or telehealth examination to complete the examination, expediting the process by eliminating the wait time to schedule and conduct an in-person exam. As that examination was not conducted in-person, no exercise capacity testing was conducted. The Board observes that the ACE process was used due to Covid-19 protocols. "[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In order to be entitled to a 100 percent disability rating, there are several alternatives available under 38 C.F.R. § 4.97, Diagnostic Code 6604. One of the alternatives is a "maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation)." Here, there is no evidence of record addressing the Veteran's exercise capacity. As he may obtain a 100 percent disability rating if his maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), the Board concludes remand is required to afford the Veteran a new VA examination assessing the severity of his COPD, to include exercise capacity testing. Of course, if such testing cannot be completed by an examiner, for example as due to safety of the Veteran, then an explanation must be provided indicating the reasons; here, no explanation was offered by the December 2019 examiner. 2. Entitlement to a total disability evaluation based on individual unemployability is remanded. As the award of a higher disability rating for the Veteran's COPD may reasonably affect the adjudication of his claim for TDIU, the Board finds these issues to be inextricably intertwined, and entitlement to TDIU must be remanded pending completion of development of the Veteran's claim for an increased disability rating for COPD. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain a new VA examination from an appropriately qualified clinician as assess the severity of the Veteran's chronic obstructive pulmonary disease. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner must conduct an in-person examination of the Veteran unless it is unreasonable to do so. If the examiner is unable to conduct an in-person examination, the reasons must be documented. As part of the examination, the examiner must conduct pulmonary function testing and exercise capacity testing unless it is unreasonable to do so. See 38 C.F.R. § 4.97, Diagnostic Code 6604 (rating criteria for a 100 percent disability rating). If the examiner is unable to conduct an either testing, the reasons must be documented. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner 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). 3. Send the Veteran VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and inform him that his prior submission of this form on August 3, 2020, is incomplete, and failing to complete the form may result in unfavorable adjudication. Readjudicate the entitlement to TDIU. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.