Citation Nr: 21022536 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 20-06 747 DATE: April 16, 2021 ORDER Entitlement to an initial rating in excess of 60 percent a respiratory condition is denied. FINDING OF FACT Throughout the entire period on appeal, the evidence of record shows that the Veteran’s respiratory condition has resulted in FVC greater than 40-percent predicted. CONCLUSION OF LAW The criteria for an initial rating in excess of 60 percent for service-connected parenchymal lung disease and restrictive lung disease due to asbestos exposure have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6604. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1960 to August 1962 and September 1965 to May 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was previously represented in this appeal by a private attorney who withdrew from representation in April 2020. The Veteran has not appointed a new representative and proceeds in this appeal pro se. In November 2020, the Veteran testified before the undersigned Veterans Law Judge at a hearing. A transcript of the hearing has been associated with the claims file. The Board notes that relevant VA-generated evidence was associated with the Veteran’s claims file after the issuance of the statement of the case (SOC) pertinent to this appeal. However, during his November 2020 hearing, the Veteran waived initial Agency of Original Jurisdiction (AOJ) consideration of this additional evidence. Therefore, the Board may properly consider the newly received evidence without prejudice to the Veteran. Duties to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not advanced any procedural arguments in relation to VA’s duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 1. Entitlement to an initial rating in excess of 60 percent for a respiratory condition The Veteran generally contends that he is entitled to an increased rating for his service-connected respiratory condition because his symptoms are more severe than contemplated by his currently-assigned rating. The Veteran is in receipt of an initial 60 percent rating for his respiratory condition under Diagnostic Code 6604. Diagnostic Codes 6600 and 6604 provide a 10 percent evaluation for pulmonary function tests (PFTs) that show FEV-1 of 71 to 80 percent predicated, or; a ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicated. A 30 percent evaluation requires FEV-1 of 56 to 70 percent predicated, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) of 56 to 65 percent predicated. A 60 percent evaluation requires FEV-1 of 40 to 55 percent predicated, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55 percent predicated, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent evaluation is warranted for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC of less than 40 percent, or; DLCO (SB) of 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. 38 C.F.R. § 4.97, Diagnostic Codes 6600 and 6604. Pulmonary function tests (PFTs) are generally required to evaluate conditions under diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845. 38 C.F.R. § 4.96(d)(1). When evaluating based on PFTs, the post-bronchodilator results must be used in applying the evaluation criteria, 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). In that case, the General Rating formula mandates use of the pre-bronchodilator results for rating purposes. 38 C.F.R. § 4.96 Note 5. If the DLCO (SB) test is not of record, the disability may be rated based on alternative criteria as long as the examiner explains why the DLCO (SB) test would not be useful or valid in a particular case. 38 C.F.R. § 4.96 (d)(2). Where there is a disparity between the results of the various pulmonary function test results, the test result that an examiner states most accurately reflects the claimant’s level of disability is to be used. 38 C.F.R. § 4.96 (d)(6). Turning to the evidence of record, during the period on appeal, the Veteran has primarily reported difficulty breathing, wheezing, coughing, and shortness of breath. The Veteran is competent to report such symptoms, and there is no evidence that his statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, they are entitled to probative weight as to the severity of the disability during the period on appeal. At his November 2020 hearing, the Veteran testified that his respiratory condition manifests with coughing, wheezing, and shortness of breath. He stated that he uses an inhaler. The Veteran reported that it is harder for him to breathe when walking around and can only walk for about five minutes before his shortness of breath and wheezing is so severe he needs to sit down though he stated that he is still able to do some things around the house such as mowing the lawn with a riding mower and driving his wife to the grocery store. He did not report any incapacitating episodes. The Veteran was provided with VA examinations in January 2015, August 2017, and November 2020. In January 2015, the examiner noted that the Veteran required intermittent inhalational bronchodilator therapy. The examiner noted that no oral bronchodilators, antibiotics, or outpatient oxygen was required. Further, there was no evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or acute respiratory failure. PFTs were conducted at the time of the examination and the results were as follows: (1) FVC 57 percent predicted; (2) FEV-1 54 percent predicted; (3) FEV-1/FVC 70 percent predicted. The examiner indicated that the Veteran’s FEV-1 most accurately reflects his level of disability. 38 C.F.R. § 4.96(d)(6). Exercise capacity testing was not conducted. DLCO (SB) testing also was not completed as the examiner indicated in Veteran’s particular case. In January 2017, the Veteran underwent a private PFT with results as follows: (1) 64 percent predicted post-bronchodilator; (2) FEV-1 65 percent predicted post-bronchodilator; (3) FEV-1/FVC 98 percent predicted post-bronchodilator and (4) DLCO (SB) 57 percent predicted. In August 2017, the examiner noted that the PFT performed upon examination was invalid due to poor effort, therefore the examination is not appropriate for rating purposes. 38 C.F.R. § 4.96(d)(1). PFTs are necessary to rate the residuals of the Veteran’s inactive tuberculosis under the revised rating criteria. Id. In November 2020, the examiner noted that the Veteran required daily inhalational bronchodilator therapy as well as oral bronchodilators. The examiner noted that neither antibiotics nor outpatient oxygen was required. Further, there was no evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or acute respiratory failure. PFTs were conducted, with results as follows: (1) FVC 92 percent predicted (2) FEV-1 87 percent predicted; (3) FEV-1/FVC 71 percent predicted. 38 C.F.R. § 4.96(d)(3). The examiner stated that the Veteran’s FVC score more most accurately reflected the Veteran’s level of disability. 38 C.F.R. § 4.96(d)(6). Exercise capacity testing was not conducted. DLCO (SB) testing also was not completed as the examiner indicated in Veteran’s particular case. Treatment records reflect that the Veteran was consistently treated for COPD, with recurrent reports of shortness of breath or trouble breathing. However, no further PFT results are contained in the treatment records associated with the file prior to the decision on appeal. None of the treatment records noted that the Veteran was diagnosed with cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or acute respiratory failure. Further, none of the treatment records indicate that the Veteran was at any point prescribed outpatient oxygen treatment. There is no evidence that the above examiners were either not competent or credible. Further, both the January 2015 and November 2020 examiners conducted all necessary testing and based their assessments both on the medical evidence of record, their own observations, and the PFT results. 38 C.F.R. § 4.96(d). As such, the Board finds that the examination reports are entitled to significant probative weight as to the severity of the Veteran’s disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition to the C&P report, the Board has reviewed the Veteran’s VA and private treatment notes during the appeal period; these records do not reflect more severe symptoms or testing results that those shown in the November 2020 C&P examination report. Therefore, based on the evidence as outlined above, the Board finds that throughout the period on appeal the Veteran’s pulmonary function tests do not support a rating in excess of 60 percent. See 38 C.F.R. § 4.97, Diagnostic Code 6604. Further, at no point since the effective date of the grant of service connection is there evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, acute respiratory failure, or outpatient oxygen therapy. While the Veteran continued to report shortness of breath or difficulty breathing, the November 2020 examiner noted that the FVC score from the October 2020 PFT test, which the examiner stated was the most representative, was 88 percent predicted both pre-bronchodilator and 92 percent post-bronchodilator. This score is well in excess of the level of limitation contemplated by higher ratings for COPD. Based on the foregoing, the preponderance of the evidence is against a finding that a rating in excess of 60 percent is warranted in this case. 38 C.F.R. §§ 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6604. The Board has considered whether staged ratings are warranted for the Veteran’s service-connected respiratory condition; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings is not warranted. Fenderson, 12 Vet. App. at 126. No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. All other restrictive lung diseases are rated based on the same criteria as COPD, and thus higher ratings would not be possible based on the discussion above. 38 C.F.R. § 4.97, Diagnostic Codes 6601 to 6604, 6840 to 6845. As such, higher ratings under other Diagnostic Codes are not possible. The Board notes that the Veteran has a diagnosis of asbestosis 38 C.F.R. § 4.97, DC 6825. However, there is no evidence in either of the examination reports or the treatment records that the Veteran’s FVC is less than 50 percent of predicted value; DLCO (SB) is less than 40 percent predicted value; maximum exercise capacity is less than 15 ml/kg in oxygen consumption with cardiorespiratory limitation; or cor pulmonale or pulmonary hypertension; or requires oxygen therapy as would be necessary for a 100 percent rating. 38 C.F.R. § 4.97, Diagnostic Code 6825 All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a rating in excess of 60 percent for COPD. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rosenthal, Ariana 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.