Citation Nr: 21007563 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 19-26 182A DATE: February 10, 2021 ORDER Prior to April 23, 2019, entitlement to a rating in excess of 30 percent for emphysema and chronic obstructive pulmonary disease (hereafter pulmonary disease) is denied. From April 23, 2019 to November 10, 2020, an increased rating of 60 percent, but no higher, for pulmonary disease is granted. From November 10, 2020, a 100 percent rating for pulmonary disease is granted. From April 23, 2019 to November 9, 2020, entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Entitlement to an extraschedular TDIU from June 20, 2016 to April 23, 2019 is remanded. FINDINGS OF FACT 1. Prior to April 23, 2019, the Veteran’s service-connected pulmonary disease was manifested by FEV-1 greater than 55 percent predicted, Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) greater than 55 percent, and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) greater than 55 percent predicted and there is no evidence of maximum oxygen consumption of 15 to 20 ml/kg, cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, acute respiratory failure, or outpatient oxygen therapy. 2. From April 23, 2019 to November 10, 2020, the Veteran’s service-connected pulmonary disease was manifested by Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) between 40 and 55 percent predicted. 3. From November 10, 2020, the Veteran’s service-connected pulmonary disease required outpatient oxygen therapy. 4. From April 23, 2019 to November 9, 2020, the Veteran’s service-connected disability precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent prior to April 23, 2019 for pulmonary disease are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.96, 4.97, Diagnostic Code (DC) 6604. 2. From April 23, 2019 to November 10, 2020, the criteria for a 60 percent rating, but no higher, for pulmonary disease are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.96, 4.97, DC 6604. 3. From November 10, 2020, the criteria for a 100 percent rating pulmonary disease are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.96, 4.97, DC 6604. 4. From April 23, 2019 to November 9, 2020, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1958 to November 1966. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board remanded this matter for further development. The Board notes that the December 2020 Appellant’s Post-Remand Brief asserts that not all records were obtained by the RO pursuant to the Board’s June 2020 remand instructions, as there as non-responsive action from some of the facilities. Upon review of the record, the Board finds no evidence of failure to obtain records. After the June 2020 remand, the Veteran submitted a VA Form 21-4142a and VA Form 21-8940 in October 2020 and identified one private medical facility, hereinafter the T.O. facility. Records were received from the T.O. facility in October 2020. Thus, the representative’s assertion is without merit. 1. Prior to April 23, 2019, entitlement to a rating in excess of 30 percent for pulmonary disease is denied. 2. From April 23, 2019 to November 10, 2020, a schedular rating of 60 percent, but no higher, for pulmonary disease is granted. 3. From November 10, 2020, a 100 percent schedular rating for pulmonary disease is granted. The Veteran asserts that his service-connected pulmonary disease warrants an increased evaluation. See December 2020 Appellant’s Post-Remand Brief; April 2020 Appellant’s Brief; September 2019 VA Form 9; October 2017 Notice of Disagreement. The Veteran also asserts that the VA has failed to consider December 2017 CT scans in evaluating his disability. See September 2019 VA Form 9. The Board has reviewed those CT scans and notes that those records do not speak to any of the specific criteria provided by regulation for evaluating the Veteran’s pulmonary disease. The Veteran’s service-connected pulmonary disease is evaluated under the provisions of 38 C.F.R. § 4.97, DC 6604, which specifically contemplates the Veteran’s diagnosis of Chronic Obstructive Pulmonary Disease (COPD). The Veteran also has a diagnosis of emphysema which is subject to the same rating criteria as COPD under DC 6603. As the rating criteria in DC 6604 specifically contemplates the Veteran’s service-connected COPD, and the Veteran is not service-connected for emphysema, no other DC may be used to rate the Veteran’s disability. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). Under DC 6604, a 100 percent rating is assigned for FEV-1 less than 40 percent predicted; FEV-1/FVC less than 40 percent; DLCO (SB) less than 40 percent predicted; maximum exercise capacity less than 15 ml/kg in oxygen consumption; cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension; acute respiratory failure; or outpatient oxygen therapy. 38 C.F.R. § 4.97. A 60 percent rating is assigned for FEV-1 of 40 to 55 percent predicted; FEV-1/FVC of 40 to 55 percent; DLCO (SB) of 40 to 55 percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg. Id. A 30 percent rating is assigned for FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent, or DLCO (SB) of 56 to 65 percent predicted. Id. The Board notes the Veteran is service-connected for emphysema, which is contemplated under DC 6603, and chronic obstructive pulmonary disease, which is contemplated under DC 6604. Under 38 C.F.R. § 4.96, ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Instead, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96. The Board notes that both DCs have identical rating criteria, and no other DC may be employed to rate the Veteran’s disability. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). Post-bronchodilator studies are required when pulmonary function tests (PFTs) are used for rating purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be performed and explains why. 38 C.F.R. § 4.96(d)(4). When evaluating a disability based upon PFT results, post-bronchodilator results are used unless they are poorer than the pre-bronchodilator results. If so, the pre-bronchodilator results are used. 38 C.F.R. § 4.96(d)(5). If the DLCO (SB) test is not of record, the VA may evaluate based on alternative criteria so long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). The period on appeal before the Board is from the Veteran’s June 20, 2016 increased rating claim, plus the one-year lookback period. With respect to the period prior to April 23, 2019, the Veteran’s PFT results do not warrant a rating in excess of 30 percent. April 2018 PFT results reflect FEV-1 of 78 percent predicted, FEV-1/FVC of 57 percent predicted (most accurately reflecting disability), and DLCO (SB) of 61 percent predicted. See April 2019 VA examination (noting the 2018 results). October 2016 PFT results reflect FEV-1 of 102 percent predicted, FEV-1/FVC of 68 percent predicted (most accurately reflecting disability), and DLCO (SB) of 92 percent predicted. See October 2016 VA examination. In addition, the October 2016 VA examination indicates that exercise testing was not performed, and the Veteran did not require outpatient oxygen therapy. Additional medical evidence also indicates the Veteran did not require outpatient oxygen therapy during this time period. See April 2019 VA examination (Veteran does not require outpatient oxygen therapy); August 2018 VA Home Oxygen Evaluation (“Veteran expresses no acute home oxygen needs.”); June 2018 VA Surgery Critical Care Unit note (“No need for home O2.”); June 2018 VA Discharge note (indicating home outpatient oxygen “was originally arranged but is no longer needed”). Furthermore, there is no evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or acute respiratory failure prior to April 23, 2019. Accordingly, the medical evidence of record does not support an increased evaluation for pulmonary disease prior to April 23, 2019, under the DC 6604 criteria. With respect to the period from April 23, 2019 to November 10, 2020, PFT results warrant a rating in excess of 60 percent. Specifically, a PFT conducted by a private medical provider on April 23, 2019, revealed a DLCO (SB) of 44 percent predicted. Although an April 2019 VA examiner indicated that the Veteran’s 2018 PFT results accurately reflected his pulmonary function in April 2019, the April 2019 VA examination report did not include PFT results conducted in 2019, and the 2018 results did not include post-bronchodilator findings. The April 2019 private examiner did not indicate which test results most accurately reflected the level of his disability as required by 38 C.F.R. § 4.96(d)(6). However, as there are deficiencies in both the April 2018 and April 2019 VA PFTs and the April 2019 private PFT, the reasonable doubt doctrine applies. After resolving doubt in the Veteran’s favor, the Board finds that the private April 2019 PFT results showing a DLCO (SB) of 44 percent predicted support an increased evaluation under DC 6604 to the 60 percent level from April 23, 2019 for the Veteran’s service-connected pulmonary disease. With respect to the period from November 10, 2020, a VA examiner indicated on that date that the Veteran was on continuous oxygen therapy and the Veteran’s condition required outpatient oxygen therapy. Because the Veteran was on oxygen therapy, PFT testing could not be performed. The November 2020 examination further indicated that it was not possible to determine whether the limitations in the Veteran’s pulmonary function were caused by service-connected or non-service-connected conditions. Thus, resolving doubt in the Veteran’s favor, the Board finds that the November 2020 VA examination showing the Veteran requires outpatient oxygen therapy supports an increased evaluation under DC 6604 to the 100 percent level from November 10, 2020, for the Veteran’s service-connected pulmonary disease. 4. From April 23, 2019 to November 10, 2020, entitlement to a TDIU is granted. The Veteran asserts he is unable to secure or follow a substantially gainful occupation as a result of his service-connected pulmonary disease. See December 2020 Appellant’s Post-Remand Brief. The Veteran seeks schedular or, in the alternative, extra-schedular TDIU. Id. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the Veteran is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran is service-connected for pulmonary disease and residuals of pharyngitis, which are noncompensable. As the Board is awarding an increased evaluation of 60 percent for service-connected pulmonary disease effective April 23, 2019, the Veteran first meets the schedular criteria for a TDIU as of this date. His entitlement to an extraschedular TDIU is addressed below. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Evidence shows that the Veteran last worked full time in 1998. See October 2020 VA Form 21-8940. Accordingly, the economic component of a TDIU is met from April 23, 2019. Turning to the noneconomic component, the Veteran has received two years of college education and has not received any education or training since becoming too disabled to work. See October 2020 VA Form 21-8940. The Veteran’s employment history involves manual labor on a golf course and as a gear inspector for an aviation company. Id. The Veteran’s employment in these jobs involved physical labor; thus, the Board will focus on his limitations in these areas. The November 2020 VA examiner indicated the Veteran experienced shortness of breath on exertion which limited his “overall exertional capacity as well as mobility.” An October 2020 letter from the general manager of the golf course where the Veteran worked part time in 2017 and 2018 indicates that the Veteran assisted staff for approximately two years cleaning golf carts and retrieving golf balls from the driving range. The letter further indicates that the Veteran was unable to meet the physical demands of the job without assistance. The letter also states that the Veteran’s breathing limitations “kept him from being able to complete the tasks” required of the job. See also October 2020 VA Form 21-4192. The April 2019 VA examiner indicated the Veteran’s pulmonary disease negatively impacted his ability to work due to shortness of breath at rest and upon exertion, dizziness at rest and upon exertion, and decreased stamina. The examination report indicates that the Veteran’s disability negatively impacts his ability to walk, bend, stoop, lift, climb stairs, or carry weighted objects. The examination further indicates that the Veteran’s disability also adversely impacts his ability to perform sedentary work, as he experiences shortness of breath and dizziness at rest. The above-cited evidence demonstrates the Veteran’s service-connected pulmonary disease, alone, precludes him from securing or following substantially gainful employment. The Veteran’s pulmonary disease is productive of shortness of breath and dizziness upon any exertion and at rest, which would prevent him from securing or following substantially gainful employment in a physical or sedentary job. Accordingly, entitlement to a TDIU is warranted from April 23, 2019. A TDIU is moot from November 10, 2020, when the Veteran is in a 100 percent schedular rating for his pulmonary disease. See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); Bradley v. Peake, 22 Vet. App. 280, 293 (2008). REASONS FOR REMAND 5. Entitlement to an extraschedular TDIU from June 20, 2016 to April 23, 2019 is remanded. Remand is warranted for an extraschedular TDIU referral. 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer the matter of entitlement to an extraschedular TDIU to the Director of Compensation Service. The Director’s attention is invited to the October 2016 VA examination report noting that the Veteran has shortness of breath on any exertion, and the fact that his prior work history involved exclusively non-sedentary positions. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.