Citation Nr: 21029784 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-39 476 DATE: May 17, 2021 ORDER Entitlement to a 60 percent disability rating for hypersensitivity pneumonitis from June 14, 2017 is granted. Entitlement to a disability rating in excess of 60 percent for hypersensitivity pneumonitis from December 7, 2020 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT 1. The Veteran exhibited a DLCO of 43 percent predicted from June 14, 2017. 2. The Veteran's hypersensitivity pneumonitis is not manifested by an FVC less than 50- percent predicted, or DLCO (SB) less than 40- percent predicted, or maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or cor pulmonale or pulmonary hypertension, and does not require outpatient oxygen therapy at any point during the appeal. 3. The Veteran's service-connected disabilities do not prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW 1. The criteria for an earlier effective date for a 60 percent disability rating for hypersensitivity pneumonitis, prior to December 07, 2020, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, DC 6831. 2. The criteria for a disability rating in excess of 60 percent for hypersensitivity pneumonitis from December 07, 2020, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, DC 6831. 3. The criteria for a total disability rating based on individual unemployability have not been met. 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1991 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in November 2018. A transcript of the hearing is of record. This matter was remanded by the Board in March 2019 and again in April 2020 for additional development. The requested development having been completed (specifically, a VA examination with adequate testing results), the Board finds substantial compliance with its previous remand instructions. 1. Entitlement to an earlier effective date for a 60 percent disability rating for hypersensitivity pneumonitis prior to December 07, 2020 Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Here, the Veteran's disability has been rated in accordance with DC 6831, which establishes a 10 percent rating upon evidence of Forced Vital Capacity (FVC) of 75- to 80-percent predicted value, or for Diffusion Capacity of the Lung for Carbon Monoxide by Single Breath Method (DLCO (SB)) of 66- to 80-percent predicted value; a 30 percent rating for FVC of 65- to 74- percent predicted, or DLCO (SB) of 55- to 65- percent predicted; a 60 percent rating for FVC of 50- to 64- percent predicted, or DLCO (SB) of 40- to 55- percent predicted, or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation; and a 100 percent rating for FVC less than 50- percent predicted, or DLCO (SB) less than 40- percent predicted, or maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or cor pulmonale or pulmonary hypertension, or requires outpatient oxygen therapy. When evaluating disabilities based on pulmonary function tests (PFTs), post-bronchodilator results are used in applying the evaluation criteria in the rating schedule unless the post-bronchodilator studies are poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5). As such, the Board will report the results most favorable to the Veteran herein. The Board has already determined, in the March 2019 Board decision, that the Veteran's condition does not warrant a compensable rating prior to June 14, 2017. Thus, the Board will determine will analyze the timeframe of June 14, 2017 to the present, to determine the proper rating for the Veteran's service-connected disability during this time frame. In this regard, the Veteran appeared for a VA examination in June 2017. During the examination, the Veteran reported shortness of breath at rest and an increase of shortness of breath during exertion and heavy work. Pulmonary function testing was performed, and the results were as follows: FVC 76 percent predicted; and DLCO (SB) 43 percent predicted. The examiner determined that the results accurately reflected the Veteran's current pulmonary function. In the March 2019 Board decision, the Board found that the June 2017 VA examination was inadequate. Specifically, the Board found that the examiner did not provide a value for exercise capacity testing. Pursuant to the March 2019 Board remand, the Veteran appeared for another VA examination in December 2020. The examiner produced the same PFT results from the June 2017 examination and did not include a value for exercise capacity. The examiner explained that exercise capacity testing is not medically required for the Veteran's current treatment plan and the test was not without significant risk. Review of the Veteran's VA and private treatment records reveal no additional documentation of PFT results for consideration. Thus, the Board will continue the analysis with the PFT results that are of record. The Board finds that the Veteran's disability warrants a 60 percent rating from June 14, 2017. While the Veteran was initially rated 60 percent due to the PFT results exhibited in his December 2020 VA examination, the results contained therein were derived from the June 2017 VA examination. In the June 14, 2017 VA examination, the Veteran had PFT results of 43 percent predicted. Accordingly, the Veteran's disability picture meets the criteria of a 60 percent rating from June 14, 2017, and an increased rating is granted from that point forward. 2. Entitlement to a disability rating in excess of 60 percent for hypersensitivity pneumonitis from December 7, 2020 (or at any time prior) The Board has considered whether the Veteran is entitled to a disability rating in excess of 60 percent from June 14, 2017 to the present. However, the assignment of a disability rating per DC 6831 is derived from objective PFT results. In this instance, the objective evidence of record does not indicate that a higher rating is warranted because the Veteran has not shown an FVC less than 50- percent predicted, or DLCO (SB) less than 40- percent predicted, or maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or cor pulmonale or pulmonary hypertension, or requires outpatient oxygen therapy. Thus, a disability rating in excess of 60 percent is not warranted at any time. TDIU 3. Entitlement to a total disability rating based on individual unemployability Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment must be reviewed in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356 (1991), Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is currently service connected for hypersensitivity pneumonitis with a 60 percent rating; left knee patellofemoral pain syndrome with a 10 percent rating; right knee patellofemoral pain syndrome with a 10 percent rating; and tinnitus with a 10 percent rating for a combined disability rating of 70 percent. Thus, the Veteran is eligible for a TDIU. More specifically, the Veteran has been eligible for a TDIU since June 14, 2017, the date he rated 60 percent for his hypersensitivity pneumonitis. The Veteran submitted a formal application for a TDIU in March 2015. On his form, the Veteran indicated that he worked full-time as a first responder from September 2005 to May 2012; was unemployed from May 2012 to January 2014; worked full-time as a grocery stocker from January 2014 to May 2014; and worked part-time as an administrator from July 2014 to October 2014. He stated that the highest level of education completed was high school and that he had 4 months of training for his position as a first responder. The Veteran reported that he left his last place of employment due to his disability and tried to obtain employment since that time. In VA treatment records from October 2019, the Veteran reported that he had not been employed since 2012. In December 2019, the Veteran expressed that he was interested in being employed again. The Veteran also reported that he was attending school and was getting good grades. During the Veteran's March 2015 VA examination for hypersensitivity pneumonitis, the examiner determined that the Veteran's disability impacted his ability to work. The examiner stated that his shortness of breath would limit his ability to perform repetitive heavy lifting, pushing or pulling. In a December 2020 VA examination, the examiner again determined that the Veteran's hypersensitivity pneumonitis impacted his ability to work. The examiner explained that, as a fire-pump operator, the Veteran could not perform the strenuous activities required because of his shortness of breath and fatigue. The Veteran underwent VA examination for his bilateral knee patellofemoral pain syndrome in March 2015. The examiner determined that his knee disability would impact his ability to perform occupational tasks such as squatting climbing or kneeling. The examiner also determined that the Veteran would be able to perform sedentary work. In a statement submitted to the VA in August 2015, the Veteran reported that he has a continuous tone in his ears due to his tinnitus. Additionally, he reported that he was unable to stand for longer than 1 or 2 hours and was unable to maintain gainful employment. Upon reviewing all of the pertinent evidence of record, the Board finds that entitlement to a TDIU is not warranted. In making this determination, the Board must consider whether the Veteran has the economic and noneconomic capacity to perform a substantially gainful occupation. Ray v. Wilkie, 31 Vet. App. 58, 71 (2019). Beginning with the noneconomic component, the question of whether the Veteran has the background, physical ability, and mental ability to secure or follow a substantially gainful occupation, the Board concludes that the Veteran is unable to do work that requires manual labor. The evidence of record shows that the Veteran experiences shortness of breath, and fatigue with strenuous activities; and is unable to squat, climb, or kneel repeatedly. The Veteran has exhibited, however, that he is able to do work that does not require such manual labor consistent with his education, skills, and training. Again, the Veteran previously served as a first responder with a fire department. There is no evidence that the Veteran's service-connected disabilities, considered alone or in tandem, would preclude him from serving in a role such as a dispatcher that is consistent with his background and would not require manual labor that he would be unable to complete. Further, the Veteran reported in VA treatment records that he has been attending school and has been getting good grades. Additionally, he has expressed an interest in being employed again. The record suggests that the Veteran is able to do work that allows him to sit at a desk and does not require any heavy lifting, squatting, climbing, or kneeling. The Veteran also expressed that he was unable to stand for long periods of time and stated that he experiences shortness of breath when doing strenuous labor. He did not express that he was unable to sit and perform work not requiring such strenuous labor. Moreover, his positive performance is school exhibits his ability to accomplish sedentary tasks despite his disabilities. This background also shows that the Veteran could complete the economic component of the TDIU framework, as positions consistent with his background would provide wages above those considered marginal employment. As such, the Board finds that the Veteran is able to obtain and maintain substantially gainful employment. Accordingly, entitlement to a TDIU is not warranted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, 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.