Citation Nr: 21028005
Decision Date: 05/10/21	Archive Date: 05/10/21

DOCKET NO. 07-23 901
DATE: May 10, 2021

ORDER

Entitlement to Class IV VA outpatient dental treatment is granted.

The rating reduction from 60 to 30 percent for service-connected COPD (previously rated as hyperactive airways disorder with recurrent bronchospasms) effective October 1, 2008 is void ab initio and the 60 percent evaluation is restored.

On and after October 31, 2016, the criteria for a 100 percent evaluation for COPD with asthma are met. 

Entitlement to a total disability rating based on individual unemployability (TDIU) on and after October 1, 2008 is granted.

REMANDED

Entitlement to an evaluation higher than 60 percent prior to October 31, 2016 for COPD is remanded.

FINDINGS OF FACT

1. The Veteran is eligible for Class IV VA outpatient dental treatment based on a total disability rating.

2. The December 2007 VA examination report that was used as the basis for reducing the evaluation of the service-connected COPD from 60 to 30 percent is inadequate.

3. On and after October 31, 2016, the Veteran required outpatient oxygen therapy as part of the treatment regimen for service-connected COPD.

4. On and after October 1, 2008 the Veteran has met the schedular requirements for a TDIU and he is precluded from securing or maintaining a substantially gainful occupation in a field for which he is qualified due to service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for entitlement to Class IV VA outpatient dental treatment have been met. 38 U.S.C. § 1712 (2012); 38 C.F.R. § 17.161.

2.  The reduction of rating for COPD from 60 to 30 percent is void ab initio; the criteria for restoration of the 60 percent evaluation for service-connected COPD effective October 1, 2008 are met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 3.344.

3. The criteria for a 100 percent evaluation for service-connected COPD are met from October 31, 2016 onward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.96, 4.97, Diagnostic Code (DC) 6604.

4. The criteria for entitlement to a TDIU on and after October 1, 2008 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1979 to June 1983 and from March 1984 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA).

The Veteran testified before the undersigned Acting Veterans Law Judge at a hearing in November 2016 and a transcript of the proceeding is of record. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2018); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior September 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).  

1. Entitlement to service connection for compensation purposes for a dental disorder claimed as dry mouth, to include as secondary to the service-connected COPD, and/or entitlement to VA outpatient dental treatment.

The Veteran claims entitlement to service-connection for xerostomia (dry mouth) and associated dental and periodontal complications, which he asserts is caused by medications he uses to treat his service-connected COPD. In January 2005 correspondence, the Veteran wrote that his appeal would be satisfied with the grant of entitlement to outpatient dental treatment.

Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Service connection for purposes of outpatient dental treatment may be granted for a dental condition of any tooth and/or and periodontal tissue shown by the evidence to have been incurred in or aggravated by service, so long as the veteran falls under one of a number of specific classifications: Class I - Those having a service-connected compensable dental disability or condition; Class II - Those having a service-connected noncompensable dental condition or disability shown to have been in existence at time of discharge or release from active service, which took place after September 30, 1981, with at least 90 days of service during the Persian Gulf War or 180 days of other active service, and who applied for treatment within 180 days after release from active duty, or prior to September 30, 1981 with at least 180 days of service and who applied for treatment within a year of release from active duty; Class II(a) - Those having a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma; Class II(b) - Homeless and other enrolled veterans eligible for a one-time course of dental care under 38 U.S.C. § 2062; Class II(c) - Those who were prisoners of war, as determined by the concerned military service department; Class III - Those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability may be authorized dental treatment for only those dental conditions which, in sound professional judgment, are having a direct and material detrimental effect upon the associated basic condition or disability; Class IV - Those whose service-connected disabilities are rated at 100% by schedular evaluation or who are entitled to the 100% rate by reason of individual unemployability; and Class V - Those participating in a rehabilitation program under 38 U.S.C. chapter 31, and dental services as are professionally determined necessary for any of the reasons enumerated in § 17.47(g). 38 U.S.C. § 1712; 38 C.F.R. § 17.161.

In September 2003 the Veteran's dentist, Dr. MRM, wrote that he had been following the Veteran's dental health closely for the past 4 years. Dr. MRM explained that the long-term use of inhaled and oral steroids had altered the Veteran's salivary functioning and caused dry mouth. In turn, the chronic dry mouth had resulted in deterioration of the Veteran's teeth and gum disease.  

The Veteran underwent a VA examination in February 2004. That examiner found the Veteran's mouth was not particularly drier that normal and opined that the Veteran's poor dental hygiene and lack of dental care was the cause of his chronic periodontal disease. The February 2004 examiner failed to consider the September 2003 letter from the Veteran's dental provider that shows the Veteran did receive regular dental treatment and that the medication prescribed for the service-connected respiratory disorder caused dry mouth. Thus, the 2004 opinion is inadequate and afforded no weight.

In December 2016, the Veteran's private dentist, AC, wrote that the Veteran had severe dry mouth due to many prescription medications, including years of steroid use for his respiratory disorder. The dry mouth caused the Veteran's teeth to become weak and susceptible to decay and fracture despite maintaining excellent home care and regular dental visits.

Here, the preponderance of the evidence shows the diagnosed xerostomia with dental and periodontal complications is caused by prescription medications used to treat the service-connected COPD. As a result of this Board decision, the Veteran is in receipt of a TDIU for the entire period on appeal. Under 38 C.F.R. § 17.161, Veterans who are in receipt of a total rating for individual unemployability may be authorized any needed dental treatment. Thus, the Veteran is eligible for VA outpatient dental treatment for his dental complications.

2. Entitlement to a disability evaluation higher than 60 percent prior to October 1, 2008 and higher than 30 percent on and after that date for service-connected COPD.

The Veteran seeks higher evaluations for his service-connected COPD throughout the period on appeal. 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 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 military 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509. 

Applicable law and regulations permit VA to reduce an assigned disability rating under certain circumstances, most commonly when improvement in the underlying disability is shown by the record. Reductions in ratings which result in reductions in compensation require certain notice requirements and are governed by 38 U.S.C. § 5112, as implemented by 38 C.F.R. § 3.105(e). The standards for effectuating a reduction based on improvement are set forth in 38 C.F.R. §§ 3.343 and 3.344. The provisions of 38 C.F.R. § 3.344 apply to ratings that have been in effect for over 5 years, as is the case here. Under that provision, ratings on account of diseases subject to temporary or episodic improvement, such as bronchial asthma, will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Further, examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. The examination reports on which the reduction are based must be adequate. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio).

The service-connected respiratory disorder has been rated under DC 6602 for bronchial asthma. Under that DC, a 30 percent evaluation is assigned for FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent evaluation is assigned for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent evaluation is assigned for FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications.

A January 2016 VA examiner adequately concluded that the currently diagnosed COPD was a progression of the underlying service-connected hyperactive airways disorder with recurrent bronchospasms. COPD is rated under DC 6604. That DC provides for a 100 percent evaluation when COPD requires outpatient oxygen therapy.

Post-bronchodilator studies are required when pulmonary function tests (PFTs) are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why.

Procedurally, the 60 percent evaluation for the service-connected respiratory disorder was in effect from August 1999 to October 2008, more than 5 years. During the pendency of the Veteran's appeal for an increased rating for the respiratory disorder, a July 2008 rating decision reduced the rating effective October 1, 2008. The reduction complied with the notice requirements of 38 C.F.R. § 3.105(e).

The July 2008 rating decision that decreased the evaluation of the respiratory disorder from 60 to 30 percent based the reduction on July 2006 and December 2007 VA PFT results and a December 2007 VA examination. The December 2007 VA PFT results show postbronchodilator FVC-1 to 63 percent, and FEV-1/FVC to 74 percent. The December 2007 VA examination report documents the Veteran's current asthma medications included formoterol, mometasone, ipratropium, and albuterol. At that time, the Veteran reported little difficulty breathing at rest so long as he took his medications. He was unable to perform activities such as any housework without becoming short of breath. The examiner reported the Veteran had never been hospitalized or gone to the emergency room for asthma, and it had been several years since the Veteran had taken oral prednisone. 

The December 2007 VA examiner failed to address March 2007 VA treatment notes reporting an asthma exacerbation treated with prednisone and August 2007 VA treatment notes documenting the Veteran required prednisone "a few times" in the last year or so due to asthma exacerbations. The examiner's findings are not supported by the VA treatment records and are inadequate. Further, the March 2007 and August 2007 VA treatment records shows the respiratory disorder continued to be treated with intermittent oral corticosteroids, thus the evidence does not establish clear sustained improvement and the reduction for the disorder rated as bronchial asthma may not be reduced on the basis of one VA examination. For these reasons, the reduction is void ab initio and the 60 percent evaluation is restored from October 1, 2008 onward.

On and after October 31, 2016, the criteria for a 100 percent evaluation for COPD with asthma is warranted under DC 6604. An October 31, 2016 VA treatment note documents the Veteran had reduced oxygen saturation on exertion in the setting of COPD and he was prescribed outpatient oxygen therapy for exertion. Prior to this date, available VA treatment records document the Veteran was prescribed nocturnal outpatient oxygen therapy in the setting of sleep apnea, but those records do not indicate that oxygen therapy was necessary for COPD. At the November 2016 hearing, the Veteran also testified that he was now prescribed oxygen for exertion since his last oxygen recertification. As of October 31, 2016, additional outpatient oxygen therapy was required during exertion for COPD. Thus, under DC 6604 the criteria for a 100 percent evaluation are met from October 31, 2016.

3. Entitlement to a TDIU on and after October 1, 2008.

VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment.  If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 

For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363.

For this period, service connection has been in effect for mood disorder, COPD, essential hypertension, tinnitus, osteoporosis of the spine, left hip osteoporosis/osteopenia, bilateral hearing loss, and a left eye cataract. As a result of this decision, the Veteran now meets the schedular requirements for a TDIU from October 1, 2008 onward as the respiratory disorder is evaluated at 60 percent and the combined disability rating is greater than 70 percent. The evidence establishes the Veteran is unable to secure or follow a substantially gainful occupation consistent with his training and experience solely due to his service-connected disabilities. 

The Veteran's most recent occupation was an EKG technician, and prior to that he was a long-distance truck driver. See June 2008 VA vocational rehab record. The Veteran was denied vocational rehabilitation in June 2008, and the vocational specialist concluded the Veteran was unable to maintain employment due to his service-connected disabilities in light of his education and prior work experience. The Veteran has been in receipt of Social Security Administration (SSA) Disability benefits throughout the appeal period due to the impairment from his service-connected respiratory disorder and osteoporosis of the hip and spine. SSA records received in April 2015 include a medical assessment from Dr RG. Dr. RG interviewed the Veteran and reviewed the medical evidence and concluded that the Veteran was not employable due to chronic medical problems, and that the hyperactive airway disease alone would render him unemployable. The January 2016 VA examiner found that the Veteran was precluded from any occupation that required more than mild exertion due to the service-connected respiratory disorder. At the November 2016 Board hearing, the Veteran described significant impairment with any exertion, including walking any distance, due to his respiratory disorder.

Although various VA examiners have concluded the Veteran is capable of very light to sedentary employment, those examiners did not consider the Veteran's work history or expertise. 

Overall, the preponderance of the evidence indicates the Veteran is impaired in his ability to perform employment that requires more than mild exertion. The Veteran's work history and training is consistent with employment that requires exertion, such as walking, lifting, and carrying. Previously, TDIU was discontinued from October 1, 2008 onward because the Veteran no longer met the schedular requirements for a TDIU; however, that is no longer the case as he now meets the schedular requirements. The totality of the VA treatment records do not document improvement in the service-connected conditions or improvement that would render a change in the Board's prior determination that the Veteran was unemployable. In sum, the Veteran's service-connected conditions preclude him for obtaining and maintaining a substantially gainful occupation and the claim is granted.

REASONS FOR REMAND

1. Entitlement to disability evaluation higher than 60 percent prior to October 31, 2016 is remanded.

This issue is remanded for an addendum opinion that clarifies the extent to which the Veteran was treated with oral or high dose corticosteroids prior to October 31, 2016. The Veteran was examined in January 2013, at which time the VA examiner reported the service-connected respiratory disorder did not require the use of oral or parenteral corticosteroids. A January 2016 VA examiner found the Veteran had only been treated with one course of oral or parenteral corticosteroids in the prior year. VA treatment records, however, indicate that oral or parenteral corticosteroids were a regular part of the Veteran's treatment. An August 2006 VA treatment note reports the Veteran used inhaled steroids for his pulmonary symptoms and available VA treatment show that inhaled mometasone and inhaled budesonide were actively prescribed at various times throughout the appeal period. The record indicates that inhalational steroids were a regular part of the Veteran's respiratory treatment regimen, however it is unclear whether the prescribed inhalational mometasone and budesonide constitute courses of systemic (oral or parenteral) corticosteroids or daily systemic high dose corticosteroids. Thus, remand for a clarifying opinion is required before the Board may make a decision on the claim.

Several of the listed medications are noted as active outpatient medications, however there are no non-VA medical records relevant to the Veteran's service-connected respiratory disorder. On remand, VA should undertake reasonable efforts to obtain any outstanding and relevant private treatment records.

The matters are REMANDED for the following action:

1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.

2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the severity of the service-connected respiratory disorder prior to October 31, 2016. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided.  

(a.) The examiner is requested to review the Veteran's active medication lists included in the VA treatment records and determine whether the prescribed inhalational mometasone and budesonide constitute courses of systemic (oral or parenteral) corticosteroids or daily systemic high dose corticosteroids.

(b.) The examiner's attention is directed to, but not limited to, the following: VA active medication lists dated September 2006, October 2007, April 2008, April 2009, June 2010, July 2011, January 2012, August 2012, June 2013, April 2014, and January 2015.

 

 

K. MILLIKAN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Smith, 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.