Citation Nr: 21012547 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-31 096 DATE: March 4, 2021 ORDER Entitlement to an initial compensable rating for chronic obstructive pulmonary disease (COPD) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran had any symptoms associated with COPD. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for COPD have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6604. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1978 to November 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board remanded these issues for further development. Specifically, the Board instructed that any outstanding VA and private treatment records should be obtained, and the Veteran should be afforded a VA examination to ascertain the severity of the service-connected COPD. Additional VA treatment records were added to the Veteran’s claims file, and a letter was sent to the Veteran in January 2020, requesting that he submit, or authorize VA to obtain, any additional relevant private treatment records in support of his claim on appeal. No response was received from the Veteran. The requested VA examination was obtained in December 2020. The RO subsequently issued a Supplemental Statement of the Case (SSOC) and the case was returned to the Board for adjudication. Thus, the Board finds that the requested development, in substantial compliance with the Board’s December 2019 remand directives, has been completed. Stegall v. West, 11 Vet. App. 268 (1998). New evidence has been received in the form of audiology records since the last SSOC. Generally, a SSOC must be issued by the Agency of Original Jurisdiction (AOJ) when new evidence is received. An exception to this general rule is when the additional evidence is either duplicative or not relevant to the issue on appeal. 38 C.F.R. § 20.1304(c). In the present case, the Board finds that the newly obtained evidence is not relevant to the issue of entitlement to an increased evaluation for COPD currently on appeal. Accordingly, the Board may proceed with the adjudication of the pending claim as a SSOC is not required. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Entitlement to an initial compensable rating for chronic obstructive pulmonary disease (COPD) is denied The Veteran is currently in receipt of a noncompensable evaluation for his service-connected COPD pursuant to Diagnostic Code (DC) 6604. He contends that he is entitled to a higher disability rating because he experiences shortness of breath when performing simple tasks. Under Diagnostic Code 6604 for COPD, a 10 percent rating is assigned when there is FEV-1 of 71 to 80 percent predicted, or FEV-1/FVC of 71 to 80 percent, or, DLCA (SB) is 66 to 80 percent predicted. A 30 percent rating is assigned when there is FEV-1 of 56 to 70-percent predicted, or; FEV-1/FVC of 56 to 70-percent or; DLCO (SB) of 56 to 65-percent predicted. 38 C.F.R. § 4.97. At the outset, the Board notes that the Veteran was separately awarded service connection for hodgkin’s disease and an associated residual scar in February 2014. However, these issues are not currently on appeal, and thus, the Board will not address whether higher ratings are warranted for either disability. Available medical treatment records throughout the period on appeal are silent for any complaints, treatment, or diagnosis related to COPD. An August 2016 VA examination provided a diagnosis of COPD. The Veteran reported a history of shortness of breath upon exertion while mowing the lawn, climbing stairs, or while performing simple household chores. He required daily inhalational bronchodilator therapy. Chest x-ray showed no visible active disease, irregular calcification in the right lower chest projected over the right hilum frontal view. On examination, PFT revealed pre-bronchodilator results as follows: FVC of 81 % predicted, FEV-1 of 86 % predicted, FEV-1/FVC of 77.1 %; post-bronchodilator results were as follows: FVC of 79 % predicted, FEV-1 of 86 % predicted, and FEV-1/FVC of 81 %; no DLCO results were provided, and the examiner did not indicate why these results would not otherwise be useful or valid, indicating only that the this test had not been completed. The examination notes that the FVC results most accurately reflected the Veteran’s level of disability. The examiner indicated that the Veteran’s shortness of breathing interfered with prolonged walking, standing, lifting. A VA examination, completed in December 2020, notes review of the Veteran’s previous VA examination results and lay reports of symptoms. The examiner indicated that the examination was intended to be conducted by telephone interview; however, after four unsuccessful attempts to reach the Veteran, the examiner completed the Disability Benefits Questionnaire (DBQ) based upon the available medical and lay evidence of record. The examiner provided a diagnosis of pulmonary fibrosis secondary to radiation treatment for hodgkin’s lymphoma, based on a December 2020 x-ray. This x-ray revealed lobulated calcified mass of right anterior mediastinum, sequelae of hodgkin’s lymphoma status post treatment, paratracheal soft tissue thickening, volume loss of right lung reflects post radiation changes with fibrosis and scarring. A December 2020 PFT revealed pre-bronchodilator results as follows: FVC of 54 % predicted, FEV-1 of 53 % predicted, FEV-1/FVC of 70.71 %; post-bronchodilator results were as follows: FVC of 50 % predicted, FEV-1 of 49 % predicted, and FEV-1/FVC of 70.27 %; no DLCO results were provided; however, the examiner indicated that DLCO was not indicated in the Veteran’s particular case. The examination notes that the FEV-1 results most accurately reflected the Veteran’s level of disability. The examiner opined that the Veteran’s service-connected disability had resolved. Specifically, the examiner indicated that Veteran was not found to have objective evidence in his records of actual diagnosis or treatment of COPD. The examiner indicated that the August 2016 DBQ appeared to note the Veteran’s lay statements about his condition’s history, with onset of symptoms 10 years prior with shortness of breath with exertion. However, the December 2020 examiner noted that the August 2016 examiner indicated normal PFT results. These values did not show that the Veteran had a chronic obstructive defect; nor did the August 2016 chest x-ray indicated on this report show evidence of COPD at that time. Thus, the December 2020 examiner indicate that the DBQ did not provide objective evidence from the Veteran’s records at the time of that examination to verify that the Veteran was actually diagnosed with COPD; his subjective symptoms are inconsistent with COPD, where there is constant dyspnea that is worsened by exertion. Therefore, the December 2020 examiner found that, due to his normal PFT in August 2016 and lack of objective evidence of any respiratory diagnosis/treatment in his records, the Veteran was erroneously diagnosed with COPD by the examiner in August 2016, and there is no diagnosis for his respiratory condition claim. Further, the December 2020 examiner noted that the August 2016 examiner indicated that the Veteran’s shortness of breath was caused by radiation treatment for hodgkin’s disease in 1983, without any mention of COPD, and thus, it is likely that the COPD diagnosis was in error. However, the December 2020 examiner indicated that the Veteran’s most recent chest x-ray confirmed fibrosis due to radiation treatment for non-hodgkin’s lymphoma, which the examiner indicated was a new and separate disability, unrelated to the service-connected COPD. After a review of the evidence, the Board finds that a compensable evaluation for COPD is not warranted at any time during the period on appeal. Initially, the Board acknowledges that the December 2020 examiner was unable to conduct the telephone interview with the Veteran; however, the examiner indicated that four attempts were made to reach the Veteran, and two voicemail messages were left; no response was received from the Veteran, and the Veteran did not provide any explanation for his failure to participate in his scheduled VA examination. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). Nevertheless, the Board finds that the examiner had the necessary evidence to complete this examination, as it based upon a review of all of the pertinent, available evidence of record, including the prior VA examination, lay statements, and medical evidence, and the examiner found that the Veteran did not have symptoms attributable to COPD at any time during the period on appeal. As the examination report ultimately provides sufficient information such that the Board can render an informed determination, it is adequate. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Further, the Board finds that the December 2020 VA examination is the most probative evidence of record. In this regard, the Board notes that the December 2020 examiner reviewed the pertinent medical evidence of record, including the August 2016 VA examination and 2016 and 2020 chest x-rays, as well as the Veteran’s lay statements regarding his symptoms and found that the Veteran did not have any symptoms attributable to COPD, providing supporting rationale that is consistent with the record before the Board. Indeed, there is no medical evidence of record, other than the August 2016 VA examination, that mentions any symptoms of, or treatment for, COPD; consequently, the Board finds that the August 2016 VA examiner’s findings are inconsistent with the remaining evidence of record. Thus, after considering the totality of the medical evidence of record, the Board finds that the December 2020 VA examiner’s opinion regarding the Veteran’s symptoms outweighs the findings of the August 2016 VA examiner. Accordingly, the Board finds that a compensable disability rating is not warranted for COPD. The weight of the evidence demonstrates that the Veteran does not have any symptoms associated with COPD. The Board, while cognizant of the holding in Mittleider v. West, 11 Vet. App. 181, 182 (1998), finds that the most probative evidence of record indicates that the Veteran’s shortness of breath is a symptom of the radiation treatment for hodgkin’s lymphoma. A separate, albeit noncompensable, rating is already in effect for hodgkin’s disease and considering any associated or residual symptoms due to this disability for the purposes of evaluating the Veteran’s claim for COPD would constitute prohibited pyramiding. See 38 C.F.R. § 4.14. The evidence does not identify any other subjective symptoms that may be attributed to COPD. As such, a compensable disability rating is not warranted. There is no reasonable doubt to be resolved in this matter. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. (Continued on the next page)   Although the Board acknowledges that the Veteran’s representative, in a February 2021 brief, asserts that the Veteran should be awarded service connection for pulmonary fibrosis as secondary to his non-hodgkin’s lymphoma, with a compensable rating assigned for his December 2020 PFT results, this issue has not been adjudicated by the RO, and therefore, the Board does not have jurisdiction to address whether service connection for pulmonary fibrosis is warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.