Citation Nr: 21027201 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-45 142 DATE: May 5, 2021 ORDER Entitlement to a compensable disability rating prior to October 25, 2011 for service-connected restrictive lung disease is denied. Entitlement to a disability rating in excess of 50 percent from October 25, 2011 to May 28, 2013 for service-connected restrictive lung disease with sleep apnea is denied. Entitlement to a disability rating of 60 percent, but no higher, from May 28, 2013 for service-connected restrictive lung disease with sleep apnea is granted. FINDINGS OF FACT 1. Prior to October 25, 2011, the Veteran's restrictive lung disease did not demonstrate FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO 66 to 80 percent predicted. 2. From October 25, 2011 to May 28, 2013, the Veteran's sleep apnea was the most predominate respiratory disability and required the use of a breathing assistance device such as continuous airway pressure (CPAP) machine. 3. After May 28, 2013, the Veteran's restrictive lung disease was the most predominate disability and demonstrated FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). CONCLUSIONS OF LAW 1. Prior to October 25, 2011, the criteria for a compensable rating for restrictive lung disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6845. 2. From October 25, 2011 to May 28, 2013, the criteria for a rating in excess of 50 percent for restrictive lung disease with sleep apnea have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6845, 6847. 3. After May 28, 2013, the criteria for a rating of 60 percent for restrictive lung disease with sleep apnea have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6845, 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1961 until July 1964. This matter comes to the Board of Veterans' Appeals on appeal from an October 2012 rating decision of a Department of Veterans Affairs (VA) regional office (RO). The Veteran participated in a hearing before the undersigned in July 2019; a transcript is associated with the claims file. In May 2019, the Board remanded this claim to obtain a contemporary VA examination as the Veteran alleged that his symptoms worsened since his last VA examination in May 2012. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). The Veteran is currently service-connected for both restrictive lung disease and sleep apnea. Under 38 C.F.R. § 4.96(a) a single rating will be assigned under the diagnostic code which reflects the predominate disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. The Board will therefore discuss both Diagnostic Code 6845 and 6847. The Veteran's restrictive lung disease is rated under Diagnostic Code 6845. This formula states that a 10 percent evaluation is warranted for FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO 66 to 80 percent predicted. A 30 percent evaluation is warranted for FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO 56 to 65 percent predicted. A 60 percent evaluation is warranted for FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO of 40 to 55 percent predicted, 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 predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO less than 40 percent predicted; or, maximum exercise capacity less than 15 mg/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension, or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. The Veteran's sleep apnea is currently rated under Diagnostic Code 6847. A noncompensable rating is warranted for asymptomatic but with diagnosed sleep apnea. A 30 percent rating is warranted for persistent daytime hypersomnolence. A 50 percent rating is warranted for the required use of breathing assistance devices such as a CPAP machine. A 100 percent rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. Pulmonary function tests (PFTs) are required to evaluate the Veteran's restrictive lung disease under Diagnostic Code 6845. 38 C.F.R. § 4.96(d)(2) establishes that the Board may only use DLCO pulmonary function testing results, or if the DLCO is not available and the examiner has stated why the test would not be useful or valid to evaluate the condition based on alternative criteria. Further, 38 C.F.R. § 4.96(d)(5) instructs that when evaluating based on PFTs, 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. Additionally, 38 C.F.R. § 4.96(d)(6) states that when there is a disparity between the results of different PFTs, 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 disparity. The Board will first discuss the period prior to October 25, 2011 (when the Veteran was solely service connected for restrictive lung disease), then will move to the period thereafter. Prior to October 25, 2011 Prior to October 25, 2011, the Veteran's restrictive lung disease is rated at 0 percent disabling. An October 2003 chest x-ray shows that the Veteran's lungs are well-aerated and free of active disease. July 2004 medical treatment records indicate that his lungs are clear. In an August 2006 lay statement, the Veteran stated that he had scarring in the lower lobe of both lungs. He additionally stated that he his doctor told him that he had pulmonary fibrosis, pulmonary plaques and evidence of asbestosis, along with shortness of breath, aggravated by exertion, and a dry cough. Based on the above, a compensable rating is not warranted prior to October 25, 2011. The evidence does not show that he has a FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO 66 to 80 percent predicted. Indeed, there are no PFT tests relevant to this time period in the claims file. Since PFTs are the relevant metric in which to rate restrictive lung disease, and none exist, the claim must be denied. 38 C.F.R. § 4.96(d). While the Veteran believes that his restrictive lung disease warrants a compensable rating, to include the allegations contained in the August 2006 lay statement, he is not competent to provide such opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the allegations contained in the August 2006 lay statement are irrelevant to Diagnostic Code 6845, which requires PFT testing as mentioned above. For the reasons discussed above, a compensable rating prior to October 25, 2011 for restrictive lung disease is denied. October 25, 2011 to May 28, 2013 Effective October 25, 2011, the Veteran was rated at 50 percent for restrictive lung disease with sleep apnea. During this time, the Veteran's sleep apnea was the predominate disability. 38 C.F.R. § 4.96(a). However, for the sake of clarity, the Board will discuss each. October 2011 private treatment records and a March 2013 private examination show that the Veteran's sleep apnea requires the use of a CPAP machine and demonstrated persistent daytime hypersomnolence. The Veteran participated in a June 2012 VA respiratory examination. The examiner performed PFTs showing 54 percent predicted FEV-1 pre-bronchodilator, 104 percent FEV-1/FVC pre-bronchodilator, 71 percent predicted FEV-1 post-bronchodilator, and 117 percent FEV-1/FVC post-bronchodilator. The examiner specified that the FEV-1/FVC was the most accurate test reflecting the Veteran's level of disability. The DLCO test was not performed. A June 2012 x-ray shows that the Veteran has increased markings in both lungs thought to represent chronic disease. No PFTs were performed. From October 25, 2011 to May 28, 2013, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's sleep apnea to be the predominate disability, as his sleep apnea warrants a 50 percent disability rating while his restrictive lung disability would still be noncompensable. As stated above, October 2011 private treatment records and a March 2013 private examination indicate that he requires the regular use of a CPAP machine; therefore, he is entitled to a 50 percent disability rating. However, a 100 percent disability rating is not warranted under Diagnostic Code 6847 as the evidence does not show, nor has the Veteran alleged, that his sleep apnea has resulted in chronic respiratory failure with carbon dioxide retention or cor pulmonale; or, requires tracheostomy. Furthermore, the Veteran's restrictive lung disease, as demonstrated by his PFTs, would fail to qualify for a higher 60 percent rating. To qualify for a 60 percent rating under Diagnostic Code 6845, the evidence would need to show a FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). Here, the June 2012 VA examiner stated that the 117 percent FEV-1/FVC ratio was the most accurate metric to determine the severity of the Veteran's restrictive lung disease. As such, the June 2012 score does not qualify for a higher 60 percent rating under Diagnostic Code 6845. Based on the above, the Board finds that a rating in excess of 50 percent from October 25, 2011 to May 28, 2013 for restrictive lung disease with sleep apnea is not warranted. After May 28, 2013 May 2013 private treatment records begin to demonstrate that the Veteran's restrictive lung disease is the predominate disability as he now qualifies for a higher 60 percent rating under Diagnostic Code 6845. Demonstratively, May 28, 2013 PFTs show a 48 percent predicted FEV-1 pre-bronchodilator, 95 percent FEV-1/FVC pre-bronchodilator, 42 percent predicted FEV-1 post-bronchodilator, and 77 percent FEV-1/FVC post-bronchodilator. His DLCO was 67 percent predicted. The Veteran additionally submitted numerous other PFTs. December 2015 PFTs show a 44 percent predicted FEV-1 pre-bronchodilator, 79 percent FEV-1/FVC pre-bronchodilator, with a DLCO of 49 percent predicted. January 2017 PFTs show a 45 percent predicted FEV-1 pre-bronchodilator, 76 percent FEV-1/FVC pre-bronchodilator, with a DLCO of 57 percent predicted. January 2018 PFTs show a 48 percent predicted FEV-1 pre-bronchodilator, 75 percent FEV-1/FVC pre-bronchodilator, with a DLCO of 54 percent predicted. January 2019 PFTs show a 45 percent predicted FEV-1 pre-bronchodilator, 75 percent FEV-1/FVC pre-bronchodilator, with a DLCO of 42 percent predicted. Such private testing is consistent during this stage and supports a higher 60 percent disability rating under Diagnostic Code 6845. Starting with the May 2013 private treatment records, his FEV-1 post-bronchodilator score of 42 percent predicted supports a 60 percent rating. Additionally, his December 2015, January 2018, and January 2019 DLCO scores of 49 percent, 54 percent, and 42 percent all support a 60 percent rating. The Board notes that the Veteran participated in an October 2019 VA examination and a July 2020 addendum examination for his sleep apnea. While the VA examiner sought to differentiate the difference between his sleep apnea and restrictive lung symptoms, the required PFTs were not performed per 38 C.F.R. § 4.96(a). As such, this examination is inadequate. However, the Board finds that a remand for a further examination is not necessary as the evidence fails to suggest that he meets the criteria for the next higher 100 percent rating under either Diagnostic Code 6845 or 6847. To satisfy the 100 percent criteria under Diagnostic Code 6845, the evidence would need to show that he has a FEV-1 less than 40 percent predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO less than 40 percent predicted; or, maximum exercise capacity less than 15 mg/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension, or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. Such has not been shown, or alleged, in this case. Furthermore, as stated in the previous section, the Veteran has neither shown nor alleged that his sleep apnea a has resulted in chronic respiratory failure with carbon dioxide retention or cor pulmonale; or, requires tracheostomy to satisfy the 100 percent criteria under Diagnostic Code 6847. In sum, the Board concludes that from May 28, 2013, the Veteran's restrictive lung disease is more predominate than his sleep apnea. Furthermore, his private PFTs and respiratory symptoms have consistently shown that he meets the criteria for a 60 percent rating under Diagnostic Code 6845. To this extent, the claim is granted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.