Citation Nr: 21005359 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-04 552 DATE: February 1, 2021 ORDER For the period prior to January 27, 2019, a compensable rating for a respiratory disorder, diagnosed as chronic obstructive respiratory disorder (COPD), is denied. For the period since January 27, 2019, a 10 percent rating, but no more, for a respiratory disorder, diagnosed as COPD, is granted. FINDINGS OF FACT 1. Prior to January 27, 2019, the Veteran did not demonstrate a forced expiratory value (FEV-1) or FEV-1/forced vital capacity (FVC) of 71 to 80 percent actual or predicted, or; DLCO (SB) of 66 to 80 percent predicted. 2. For the period since January 27, 2019, the Veteran exhibited a FEV-1/FVC of 71 to 80 percent. CONCLUSIONS OF LAW 1. For the period prior to January 27, 2019, the criteria for a compensable rating for a respiratory disorder, diagnosed as chronic obstructive respiratory disorder (COPD) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code (DC) 6604. 2. For the period since January 27, 2019, the criteria for a 10 percent rating, but no more, for a respiratory disorder, diagnosed as COPD has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.97, DC 6604 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to June 1977. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a compensable rating for a lung disability The Veteran is seeking an increased rating for his lung disability. While this was originally characterized as asbestosis, an August 2019 VA examination indicated that the proper diagnosis for this disorder was chronic obstructive pulmonary disease (COPD) rather than asbestosis. As such, the RO changed the Veteran’s rating pursuant to DC 6833 (addressing asbestosis) to DC 6604 (addressing COPD). The Veteran’s lung disability, now referred to as COPD, is currently rated as noncompensable (zero percent) pursuant to DC 6604 using the General Rating Formula for COPD. Under the General Rating Formula for Interstitial Lung Disease: • A forced expiratory value (FEV-1) or FEV-1/forced vital capacity (FVC) of 71 to 80 percent actual or predicted, or; DLCO (SB) of 66 to 80 percent predicted (10 percent); • FEV-1 or FEV-1/FVC of 56 to 70 percent actual or predicted, or; DLCO (SB) of 56 to 65 percent predicted (30 percent); • FEV-1/FVC of 40 to 55 percent actual or predicted, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation (60 percent); and • FEV-1/FVC of less than 40 percent actual or predicted, or; DLCO (SB) less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; where outpatient oxygen therapy is required (100 percent) 38 C.F.R. § 4.97, DC 6604. Based on the evidence of record, the Board first finds that a compensable rating is not warranted prior to January 2019. Specifically, at a PFT performed as part of an evaluation in September 2010, the Veteran’s FEV-1 was 85 percent predicted, and his FEV-1/FVC was not listed. Next, at a PFT during a VA examination performed in November 2010, his FEV-1 was 89 percent predicted. A PFT performed in July 2013 also indicated a FEV-1 of 89 percent. Finally, in January 2014, his lung volumes and DCLO was normal. A PFT performed at that time reflected a FAV-1 of 94 percent, and a DCLO of 103 percent predicted. Finally, in July 2015, his FEV-1 was 92 percent predicted. Therefore, as a FEV-1 or FEV-1/FVC was not 71 to 80 percent actual or predicted, or a DLCO (SB) of 66 to 80 percent predicted has not been shown, a compensable rating is not warranted for this period. However, it does appear that the Veteran’s respiratory functioning had worsened. Specifically, at a VA examination on January 27, 2019, the Veteran’s PFT reflected a FEV-1 of 87 percent, and a FEV-1/FVC of 80 percent. His DCLO was 73 percent. While it is true that a PFT performed in August 2019 indicated an FEV-1 of 87 percent and a FEV-1/FVC of 120 percent, the Board will grant the Veteran the benefit of the doubt and assign a 10 percent rating, but no more, for the period since January 27, 2019. The Board has considered the statements of the Veteran as to the extent of his lung disability. He is certainly competent to report that his symptoms have worsened. See Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Accordingly, resolving all doubt in the Veteran’s favor, a disability rating of 10 percent, but not higher, for the Veteran’s lung disability is warranted for the period since January 27, 2019, and the appeal is granted to this extent. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.97, DC 6604; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel