Citation Nr: 21022071 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 18-08 798 DATE: April 14, 2021 ORDER Entitlement to a disability rating in excess of 60 percent for bronchiectasis; thickened pleura left base, residuals of pneumonia with chronic bronchitis is denied. FINDING OF FACT For the entire appeal period, the Veteran’s bronchiectasis; thickened pleura left base, residuals of pneumonia with chronic bronchitis has not more nearly approximated 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 in 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; episodes of acute respiratory failure, or; requiring outpatient therapy, or; incapacitating episodes of infection at least six weeks total duration per year. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for bronchiectasis; thickened pleura left base, residuals of pneumonia with chronic bronchitis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.27, 4.96, 4.97, Diagnostic Code (DC) 6600-6601. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1961 to March 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of this hearing is of record. The issue was previously before the Board in July 2020 when it was remanded for further development. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Entitlement to a disability rating in excess of 60 percent for bronchiectasis; thickened pleura left base, residuals of pneumonia with chronic bronchitis The Veteran contends that his lung disability is more severe than what is represented by a 60 percent rating. The Veteran’s lung disability is rated as 60 percent disabling pursuant to 38 C.F.R. § 4.97, DC 6600-6601. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under DC 6601, a 60 percent evaluation is assigned for bronchiectasis with incapacitating episodes of infection of four to six weeks total duration per year, or near constant findings of cough with purulent sputum associated with anorexia, weight loss, and frank hemoptysis and requiring antibiotic usage almost continuously. A 100 percent evaluation is assigned for bronchiectasis with incapacitating infection episodes of at least six weeks total duration per year. 38 C.F.R. § 4.97, DC 6601. DC 6601 also permits rating under code 6600 for chronic bronchitis. Under DC 6600, a 60 percent rating is warranted where FEV-1 is 40 to 55 percent of predicted value, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). 38 C.F.R. § 4.97, DC 6600. A 100 percent (total) rating is warranted if FEV-1 is less than 40 percent of predicted value, or; with FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40 percent predicted, or; with maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; with cor pulmonale (right heart failure), or; with right ventricular hypertrophy, or; with pulmonary hypertension (shown by Echo or cardiac catheterization), or; with episode(s) of acute respiratory failure, or if the veteran requires outpatient oxygen therapy. Id. Effective on October 6, 2006, VA added provisions that clarify the use of pulmonary function test (PFT) results in evaluating respiratory conditions; however, such did not alter specific ratings under the affected DCs. 38 C.F.R. § 4.96(d). This regulation entitled “Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845” has seven subsections. 38 C.F.R. § 4.96(d)(1)-(7). PFTs are required 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, evaluation is 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 therapy oxygen is required. 38 C.F.R. § 4.96(d)(1). If the DLCO(SB) test is not of record, evaluation is based on alternative criteria as 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). When the PFTs are not consistent with clinical findings, evaluation is based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a given case. 38 C.F.R. § 4.96(d)(3). Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator tests should not be done and states why. 38 C.F.R. § 4.96(d)(4). When evaluating based on PFTs, post-bronchodilator results are used in applying evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre-bronchodilator values are used for rating purposes. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different PFTs (FEV-1, FVC, etc.), so that the level of evaluation would differ depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is used. 38 C.F.R. § 4.96(d)(6). Finally, if the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio should not be assigned. 38 C.F.R. § 4.96(d)(7). The evidence of record includes private treatment records from December 2014 showing that the Veteran had chronic bronchitis, congestion, green to yellow sputum, and a cough. A private June 2015 spirometry report showed FEV1 of 80 percent, 71 percent, and 77 percent predicted pre-bronchodilator. The FEV1/FVC was 93 percent, 82 percent, and 89 percent predicted pre-bronchodilator. At a September 2015 respiratory conditions disability benefits questionnaire (DBQ), the Veteran was noted to have a diagnosis of thickened pleura left base residual of pneumonia. His condition did not require the use of oral parenteral corticosteroid medications, inhaled medications, or oral bronchodilators. The Veteran was noted to use antibiotics daily for one year. Private treatment records from November 2015 show that the Veteran had persistent bronchitis with MRSA/bronchiectasis. His spirometry results were noted to be nearly normal with FVC/FEV-1 at 87/80 percent. At a January 2019 respiratory conditions DBQ, the Veteran’s lung disability did not require the use of oral parenteral corticosteroid medications, inhaled medications, or oral bronchodilators. The Veteran was noted to take antibiotics “frequently for short term due to flare ups.” He did not require outpatient oxygen therapy. His bronchiectasis was noted to produce a daily cough, acute infections, and require a course of antibiotics at least twice a year. The Veteran did not have any incapacitating episodes of infection due to his bronchiectasis. PFT testing pre-bronchodilator showed FVC at 92 percent predicted, FEV-1 at 79 percent predicted, and FEV-1/FVC at 86 percent. PFT testing post-bronchodilator showed FVC at 89 percent predicted, FEV-1 at 96 percent predicted, and FEV-1/FVC at 108 percent. The examiner noted that the FEV-1/FVC most accurately reflected the Veteran’s level of disability. A private January 2019 spirometry report showed FEV1 of 73 percent, 67 percent, and 68 percent predicted pre-bronchodilator. The FEV1/FVC was 79 percent, 77 percent, and 72 percent predicted pre-bronchodilator and was 57 percent, 55 percent, and 52 percent actual pre-bronchodilator. A private medical opinion submitted in June 2019 showed that the Veteran had a “productive cough daily and has 2 episodes of acute infections every year which require a course of antibiotics lasting 4-6 weeks.” The Veteran did not have any incapacitating episodes. VA treatment records from February 2020 indicate that the Veteran “has been on chronic antibiotic therapy (azithromycin) for about 2 years.” He did not require an inhaler. The Veteran was most recently provided with a respiratory conditions DBQ in November 2020 where he reported that he “has a productive cough yellow green, shortness of breath, fatigue, lethargic, walking causes severe shortness of breath, coughs every night before bed, has to get up at night to get rid of his phlegm, difficulty walking due to shortness of breath, sleeps most of the day, unable to carry groceries into the house or do yard work.” The Veteran’s lung disability did not require the use of oral parenteral corticosteroid medications, inhaled medications, or oral bronchodilators. He was noted to use an antibiotic daily. He did not require outpatient oxygen therapy. The Veteran’s bronchiectasis resulted in a productive daily cough with purulent and blood-tinged sputum at times, requiring antibiotic use almost continuously. The Veteran was noted to have incapacitating episodes of infection at least 6 weeks or more. PFT testing pre-bronchodilator showed FVC at 85 percent predicted, FEV-1 at 91 percent predicted, and FEV-1/FVC at 70 percent. PFT testing post-bronchodilator showed FVC at 86 percent predicted, FEV-1 at 84 percent predicted, and FEV-1/FVC at 96 percent. The examiner noted that the FEV-1/FVC most accurately reflected the Veteran’s level of disability. A private January 2021 spirometry report showed FEV1 of 91 percent predicted pre-bronchodilator and 84 percent predicted post-bronchodilator. FEV1/FVC was 72 percent predicted pre-bronchodilator and 96 percent predicted post-bronchodilator. After a thorough review of the evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 60 percent for his lung disability at any point during the appeal period under DC 6601. In this regard, a 100 percent rating is warranted for bronchiectasis with incapacitating episodes of infection of at least six weeks total duration per year. In this case, while the November 2020 examiner opined the Veteran’s chronic bronchitis caused incapacitating episodes of six weeks or more in the previous year, this position was based entirely on the Veteran’s lay reports, which are unsubstantiated and uncorroborated by the contemporaneous records, and thus not credible. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran’s statement renders a medical report incredible only if the Board rejects the statement of the veteran). Therefore, such opinion is accorded no probative weight. In this regard, a January 2019 VA examiner and June 2019 private examiner who reviewed the Veteran’s medical records and claims file noted the Veteran had no history of incapacitating episodes. Additionally, the medical evidence of record does not suggest that the Veteran required any bedrest. Thus, the medical evidence does not support a finding of incapacitating episodes related to the Veteran’s lung disability. Moreover, even if the Veteran self-confined himself to bed for extended periods during the appeal period, there is no evidence that such was accompanied by treatment from a physician, which is required for the episode to be deemed incapacitating for VA purposes. Additionally, a rating in excess of 60 percent is similarly not warranted under DC 6600. In this regard, a 100 percent rating is warranted when FEV-1 is less than 40 percent of predicted value, or; with FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40 percent predicted, or; with maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; with cor pulmonale (right heart failure), or; with right ventricular hypertrophy, or; with pulmonary hypertension (shown by Echo or cardiac catheterization), or; with episode(s) of acute respiratory failure, or if the veteran requires outpatient oxygen therapy. The evidence indicates the Veteran’s FEV-1 was, at worst, 67 percent predicted, and his FEV-1/FVC was, at worst, 52 percent (see private January 2019 spirometry report). The evidence of record also does not show maximum exercise capacity less than 15 ml/kg/min oxygen consumption, cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure, or that the Veteran required outpatient oxygen therapy. Such results do not support a 100 percent rating under DC 6600. In sum, the Board finds the most probative evidence of record does not reflect that the Veteran has manifested symptoms that more nearly approximate the level of disability to warrant a rating in excess of 60 percent at any time during the appeal period, including based on PFT findings or lay or medical evidence of other associated symptomatology. Further, the evidence does not reflect the Veteran’s service-connected bronchiectasis; thickened pleura left base, residuals of pneumonia with chronic bronchitis is manifested by interstitial or restrictive lung disease; nor does the evidence reflect that there are any other associated or resultant conditions or disabilities, such as scars, for which a separate or increased rating should be assigned. In this regard, the Board has considered the Veteran’s service-connected lung disability under all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, as discussed above, the evidence of record does not establish entitlement to a rating higher than 60 percent for the Veteran’s service-connected disability based upon the criteria used to evaluate bronchitis or bronchiectasis, which are the primary residual conditions of his lung disability, and there are no other DCs that provide a basis to assign a separate or higher rating than the 60 percent rating currently assigned. The Board therefore finds that the criteria for a rating in excess of 60 percent for the Veteran’s bronchiectasis; thickened pleura left base, residuals of pneumonia with chronic bronchitis have not been met. To the extent the Veteran seeks entitlement to a higher rating, the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.