Citation Nr: 21031461 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-24 641 DATE: May 21, 2021 ORDER Entitlement to an initial compensable rating for chronic bronchitis is granted. REMANDED Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss is remanded. FINDING OF FACT The Veteran's chronic bronchitis has been manifested, at worst, by pulmonary function tests revealing FEV-1 of 84 percent, FEV-1/FVC of 73 percent, and DLCO of 70 percent. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, but no higher, for chronic bronchitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6600. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from March 1968 to December 1969. The issues are on appeal from a March 2017 rating decision and were last remanded by the Board of Veterans' Appeals (Board) in October 2019 for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 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 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). Entitlement to an initial compensable rating for chronic bronchitis The Veteran seeks a compensable rating for his service-connected chronic bronchitis. He is currently rated pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6600. Under Diagnostic Code 6600, a 10 percent rating applies for FEV-1 (Forced Expiratory Volume in one second) of 71 to 80 percent predicted, or FEV-1/FVC (Forced Vital Capacity) of 71 to 80 percent, or DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) of 66 to 80 percent predicted. 38 C.F.R. § 4.97, Diagnostic Code 6600. A 30 percent rating applies when FEV-1 is 56 to 70 percent predicted, FEV-1/FVC is 56 to 70 percent, or DLCO (SB) is 56 to 65 percent predicted. Id. A 60 percent rating applies when FEV-1 is 40 to 55 percent predicted, FEV-1/FVC is 40 to 55 percent, or DLCO (SB) is 40 to 55 percent predicted, or there is maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). Id. A 100 percent rating applies when FEV-1 is less than 40 percent predicted, FEV-1/FVC is less than 40 percent, DLCO (SB) is less than 40 percent predicted, or there is maximum oxygen consumption of less than 15 ml/kg/min (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. Id. Regulations provide that when evaluating based on pulmonary function testing (PFTs), post-bronchodilator results are to be used in applying the rating criteria unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5). After review of all the evidence, the Board finds that the Veteran's disability picture is most consistent with a 10 percent disability rating, but no higher. The Veteran's VA and private treatment records note some complaints of and treatment for chronic bronchitis. Remaining medical evidence demonstrates normal respiration rates, chest x-rays, and chest and lung physical evaluation. In March 2014, the Veteran underwent a private PFT. The test demonstrated post-bronchodilator PFT FEV-1 of 106 percent predicted, FEV-1/FVC of 73 percent, and DLCO of 126 percent. He was afforded a VA examination in March 2017. The Veteran reported he had not received any oral or parenteral corticosteroid and did not require use of inhaled medications daily. A chest x-ray revealed no infiltrate, effusion or mass, and was negative for asbestos. Post-bronchodilator PFT FEV-1 of 91 percent predicted, FEV-1/FVC of 98 percent predicted, and DLCO of 105 percent predicted. The examiner found the FEV-1 percent was the best reflection of the Veteran's level of disability. A private treatment provider noted the Veteran's complaint of shortness of breath with exertion and that a PFT showed only mild reduction in DLCO of 70 percent in November 2018. The referenced November 2018 PFT also demonstrated post-bronchodilator FEV-1 of 84 percent predicted and FEV-1/FVC of 105 percent predicted. The Veteran was hospitalized at a private facility in March 2019 and diagnosed with acute bronchitis. A chest MRI revealed small calcified granuloma in the right middle lobe. He was prescribed with medications as part of his treatment plan. In May 2020, the Veteran was afforded a VA examination. The Board notes that due to the COVID-19 pandemic, an in-person interview was not conducted, and the examination results are from the Veteran's claims file and a telephone interview. As a result, PFT results were based on the last private PFT evaluation conducted in November 2018. The Veteran reported required daily use of inhalational bronchodilator therapy, anti-inflammatory medication, and anti-cholinergic medication. The examiner noted that that the Veteran was noncompliant with the use of all of his inhalational medications. The Veteran's bronchitis did not require use of oxygen therapy, antibiotics, or oral bronchodilators. The examiner concluded that there was insufficient medical evidence to continue a diagnosis of chronic bronchitis. Based on the evidence, the Board finds that a higher evaluation of 10 percent is warranted for chronic bronchitis. In so finding, the Board observes the private March 2014 PFT demonstrating FEV-1/FVC of 73 percent predicted and the private March 2018 PFT revealing DLCO of 70 percent predicted. Such findings correspond to a 10 percent rating under Diagnostic Code 6600. However, the Board also finds that a rating in excess of 10 percent for chronic bronchitis is not warranted. PFT results do not reveal FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted; a 60 percent rating is assigned for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit); and a 100 percent rating is assigned for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) 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. For all the foregoing reasons, the Board finds that an initial 10 percent rating, but no higher, is warranted for the Veteran's service-connected chronic bronchitis. In reaching this determination, the Board has considered all applicable diagnostic codes. REASONS FOR REMAND Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss is remanded. In October 2016, the Veteran underwent a private audiogram. The Board finds the October 2016 private evaluation is insufficient for adjudication purposes and pertinent to the current appeal. The audiological examination results attached to this examination are displayed in graphical form that have not been converted to an appropriate numerical form. The private audiologist also did not state whether the speech discrimination scores were obtained using the Maryland CNC word list test. 38 C.F.R. § 3.385. The U.S. Court of Appeals for Veterans Claims (Court) has held that interpretation of a graphical audiogram is a finding of fact, to be made by the Board in the first instance. Kelly v. Brown, 7 Vet. App. 471 (1995). If the Board is unable to interpret the graphical audiogram due to unclear results or several possible interpretations, then the Board must remand the results for translation by an appropriate specialist. Savage v. Shinseki, 24 Vet. App. 259, 270 (2011). The Board finds that the graphical representation is unclear and may have several possible interpretations. Thus, the Board is unable to interpret the graph, and further medical inquiry is necessary for a proper finding of fact to be rendered. The Board assumes the examiner was state-licensed as the license number "484" was written next to the audiologist's signature. However, there is no confirmation of state licensure and on remand, confirmation must be obtained. Kelly, 7 Vet. App. at 472. Therefore, on remand, further clarification is needed, including the results of the audiogram in numerical form, whether the speech discrimination scores were obtained using the Maryland CNC word list test, and whether the audiologist is state-licensed. The matters are REMANDED for the following action: 1. Contact the Veteran's private audiologist who administered the October 2016 private audiogram and ask for audiogram results in numerical forms, whether the speech discrimination scores were obtained using the Maryland CNC word list test, and whether the audiologist is state-licensed. Document all efforts made to obtain this information. 2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.