Citation Nr: 21012371 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-60 516 DATE: March 4, 2021 ORDER Entitlement to an effective date of October 9, 2014, but no earlier, for the assignment of a 100 percent rating for emphysema is granted. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is granted. FINDINGS OF FACT 1. The Veteran is entitled to an effective date of October 9, 2014 for the assignment of a 100 percent rating for his emphysema as this is the earliest factually ascertainable date that entitlement to a 100 percent rating was met. 2. The evidence is at least in equipoise as to whether the Veteran is rendered so helpless as to require the regular aid and attendance of another person due to his service-connected emphysema. CONCLUSIONS OF LAW 1. The criteria for an effective date of October 9, 2014 for the assignment of a 100 percent rating for emphysema have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.160, 3.400, 4.97, Diagnostic Code 6603. 2. The criteria for SMC based on the need for regular aid and attendance of another person have been met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to January 1978 and from January 1978 to June 1984. This case is before the Board of Veterans’ Appeals (Board) on appeal from August 2015 and April 2018 rating decisions by a Department of Veterans’ Affairs (VA) Regional Office (RO). In December 2020, the Veteran was afforded a virtual hearing before the undersigned Veterans Law Judge. Procedurally, regarding the issue of SMC based on aid and attendance, the Board notes that the Veteran filed a timely notice of disagreement (NOD) to the April 2018 rating decision which denied SMC based on aid and attendance. A statement of the case (SOC) was issued in March 2019. Although a substantive appeal (VA Form 9) was not filed, the Board is assuming jurisdiction of this issue in accordance with the Percy case. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (holding that the filing of a substantive appeal is permissive and that the filing of the mandatory NOD allowed the Board to assume jurisdiction of the issue not included in the original substantive appeal). 1. Entitlement to an effective date prior to March 18, 2015 for the assignment of a 100 percent rating for emphysema Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If, however, it is “factually ascertainable” that an increase in disability had occurred within the one year immediately preceding the date of receipt of the claim, then the Veteran can receive this earlier effective date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The United States Court of Appeals for Veterans Claims (Court) and VA’s General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was factually ascertainable. If the increase occurred more than one year prior to the claim, the award is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(3); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1), (2). Prior to March 24, 2015, VA accepted both formal and informal claims. An informal claim was any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). The Veteran’s service-connected emphysema is rated under diagnostic code (DC) 6603. See 38 C.F.R. § 4.97. Under DC 6603, a 100 percent disability rating is assigned for 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. Special provisions apply to diagnostic code 6003. Pulmonary function tests are required to evaluate these conditions except: (i) When the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less. If a maximum exercise capacity test is not of record, evaluate based on alternative criteria; (ii) When pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed; (iii) When there have been one or more episodes of acute respiratory failure; or (iv) When outpatient oxygen therapy is required. 38 C.F.R. § 4.96 (d)(1). When evaluating based on PFT’s, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values 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, FVC, etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). Procedurally, in August 2011, the Veteran filed a claim for service connection for asbestosis. An August 2012 rating decision granted service connection and assigned a 60 percent rating, effective August 30, 2011. The Veteran did not submit a notice of disagreement (NOD) and no new and material evidence was received within one year of the August 2012 rating decision. As such, the August 2012 rating decision is final. See 38 C.F.R. § 19.52. On July 31, 2014, the Veteran filed an informal claim for an increased evaluation for his service-connected asbestosis (now rated as emphysema). A September 2014 rating decision continued the 60 percent rating. New and material evidence, specifically a March 2015 respiratory disability benefits questionnaire (DBQ) was received within one year of the September 2014 rating decision. Therefore, the Veteran’s claim remained pending. 38 C.F.R. §§ 3.156(b), 19.52. An August 2015 rating decision granted the Veteran a 100 percent rating for emphysema, effective March 18, 2015, the date of the DBQ which contained medical evidence reflecting that a 100 percent evaluation was warranted. The Veteran filed a NOD, and subsequently a VA Form 9, seeking an earlier effective date for the assignment of a 100 percent rating for emphysema. Therefore, the question before the Board is whether entitlement to a 100 percent rating for emphysema arose at any point prior to March 18, 2015 with consideration of all the evidence of record since the Veteran filed his informal claim for an increased rating on July 31, 2014, including the one year period prior to the date of receipt of his claim. In this case, the Veteran contends that he is entitled to an effective date of October 9, 2014, which is the date he believes his emphysema met the criteria for a 100 percent rating. See November 2015 NOD. For the reasons discussed below, the Board agrees, and finds that the evidence is at least in equipoise as to whether the Veteran’s emphysema more nearly approximated the 100 percent rating criteria beginning on October 9, 2014. Specifically, in a January 2020 statement, A.K., M.D., the Veteran’s treating physician, opined that the Veteran suffers from chronic respiratory failure and was on continuous oxygen at 2 L/min at rest and 3 L/min with activity. Dr. K. noted that the Veteran developed oxygen dependent respiratory failure on October 9, 2014. Dr. K. explained that the Veteran has been on chronic oxygen supplementation ever since that date. See January 2020 statement by Dr. K. Therefore, the Board finds that the Veteran’s emphysema more nearly approximated the 100 percent rating criteria beginning on October 9, 2014, because this is the date when medical evidence reflects that outpatient oxygen therapy was required. Prior to October 9, 2014, the preponderance of the evidence is against finding that the Veteran’s emphysema more closely approximates the 100 percent rating criteria. The medical evidence during this time period includes an August 2014 VA respiratory conditions examination. At this examination, the Veteran reported increased shortness of breath on exertion and cough with yellow expectoration. Pulmonary function testing was conducted with post-bronchodilator testing reflecting a FEV-1 of 50.7 percent. The ratio of FEV-1/FVC was 58 percent and DLCO was 53.2 percent predicted. The examiner reported that the FEV-1 percent predicted most accurately reflected the Veteran’s level of disability and noted that exercise capacity testing had not been performed. The examiner reported that the Veteran did not require outpatient oxygen therapy for his respiratory condition. Therefore, because the preponderance of the probative evidence prior to October 9, 2014, does not show 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 requires outpatient oxygen therapy; 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; the Board finds that an effective date for the assignment of a 100 percent rating for emphysema earlier than October 9, 2014 is not warranted. The Board has considered the Veteran’s report of shortness of breath on exertion and notes that he is competent to report this observable symptom. However, whether the Veteran meets the diagnostic criteria for a 100 percent rating for emphysema requires complicated diagnostic medical testing which is outside the competence of the Veteran as he has not been shown to have the medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence of record. In conclusion, the Board finds that entitlement to a 100 percent rating for emphysema arose beginning October 9, 2014. As such, an effective date of October 9, 2014 for the assignment of a 100 percent rating for emphysema is granted. 2. Entitlement to SMC based on the need for aid and attendance The Veteran is claiming entitlement to SMC based on the need for aid and attendance under 38 U.S.C. § 1114(l). SMC is payable under 38 U.S.C. § 1114(l) if, as the result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to need regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350(b). As it pertains to the present case, criteria for establishing such need includes whether the Veteran is permanently bedridden or is so helpless as to need regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352(a). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance not that there is a constant need for aid and attendance. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996). For the purposes of 38 C.F.R. § 3.352(a), “bedridden” will be a proper basis for the determination of whether the Veteran needs regular aid and attendance of another person. “Bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). For the Veteran to prevail in the claim, the evidence must show that it was a service-connected disability that resulted in the need for regular aid and attendance. Prejean v. West, 13 Vet. App. 444 (2000). Turning to the evidence, during a June 2015 VA respiratory examination, the VA examiner, Dr. V. reported that the Veteran was on continuous oxygen and becomes short of breath with any physical activity, noting that he could barely walk a half a mile with oxygen. A March 2018 examination for housebound status or permanent need for regular aid and attendance was completed by D.N., M.D. The physician indicated that the Veteran was able to feed himself but unable to prepare his own meals. Dr. N. noted that the Veteran needed assistance in bathing and tending to his other hygiene needs. Dr. N. noted that the Veteran required medication management but was able to manage his own financial affairs. Dr. N. stated that the Veteran’s dyspnea impacted his ability to perform self-care, ambulate or travel beyond his home for more than a limited excursion. He noted that the Veteran could only tolerate limited exertion. During a December 2020 virtual hearing, the Veteran reported that his wife assists him with all his daily activities. He noted that he cannot bend down to tie his shoes or put on his socks and reported that it was getting more difficult to put on his own pants. The Veteran stated that his wife watches him in the shower for his safety, explaining that being in the shower “takes his breath away.” He reported that his wife administers his medications and helps him with his oxygen tank. The Veteran reported that he does not cook his own meals because he can’t be around the stove with his oxygen. He described his typical day as sitting around the house and noted that he is unable to do much of anything because he runs out of breath. The Veteran’s wife testified that he needs assistance with routine daily activities, including going to the bathroom and showering. She noted that the Veteran cannot stand up in the shower due to the humidity, so he sits down and uses the handheld shower nozzle which requires her assistance. She noted that the Veteran’s activities were extremely limited due to his shortness of breath and reported that he needs assistance moving around the house. His wife stated that he primarily moves from his bed to his chair and his chair to the couch or the bathroom. Finally, the Veteran’s wife reported that he will frequently drift off in the middle of doing something because he is so fatigued from any kind of exertion. She stated her belief that this symptom impacts his safety and requires her assistance to protect him from hazards in his environment. A January 2021 statement from Dr. K. reported that the Veteran’s respiratory status was progressively deteriorating, noting that he currently gets dyspneic even when taking a few steps. Dr. K. noted that he needs assistance from his wife in his daily activities. After careful review of the record, the Board finds that the evidence is at least in relative equipoise regarding whether the Veteran requires the regular aid and attendance of another person due to his service-connected emphysema. The lay and medical evidence reflects that the Veteran requires care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. Specifically, the Veteran reported that his wife watches him when he is in the shower because the humidity of the shower takes his breath away. This statement implies that his wife watches him for his safety, thereby protecting him from falling or harming himself while showering. See December 2020 Board hearing. Additionally, his wife also testified at the Board hearing that the Veteran frequently doses off due to his excessive fatigue from shortness of breath, noting her belief that this symptom impacts his safety and requires her assistance to protect him. The Board agrees and finds that his wife’s competent and credible report that he is prone to falling asleep in the middle of an activity, shows that it is at least as likely as not that the Veteran requires care on a regular basis to protect him from hazards in his daily environment. Finally, the Board finds the fact that the Veteran requires medication management by another person to protect him from administering a dose hazardous to his health or to protect him from not taking his medication, is evidence of his need for aid and attendance. Further, the evidence shows that the Veteran is unable to keep himself ordinarily clean and presentable or attend to the wants of nature without the aid and attendance of another person. Dr. N. noted that the Veteran needs assistance in bathing and tending to his other hygiene needs which indicates that he is unable to keep himself clean and presentable on his own. See March 2018 examination. The Veteran’s wife also testified that he needs assistance going to the bathroom and showering. She explained that the Veteran cannot stand up in the shower due to the humidity, so he sits down and uses the handheld shower nozzle which requires her assistance. See December 2020 Board hearing. Therefore, the Board finds that the competent and credible medical and lay evidence show that the Veteran is unable to keep himself ordinarily clean and presentable or attend to the wants of nature without his wife’s help. Lastly, the record reflects that the Veteran is unable to dress or undress himself on his own without assistance from his wife. The Veteran reported that he is unable to bend down to tie his shoes or put on his socks and reported that it was getting more difficult to put on his own pants. See December 2020 Board hearing. In summary, the Board finds that due to his service-connected emphysema, the Veteran requires the care and assistance of another person to accomplish most of the activities of daily life and for protection against the hazards and dangers incident to daily life. As such, the Board finds the Veteran has met the schedular criteria for SMC for a permanent need for aid and attendance. The medical and lay evidence is at least in equipoise that he has demonstrated the need of regular aid and attendance by another person. Affording the Veteran the benefit of the doubt as the law requires, SMC for regular aid and attendance is granted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alison M. Mecone, 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.