Citation Nr: 21032393 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 14-29 012 DATE: May 26, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for residuals of chronic pneumonia with left lower lung scar and chronic obstructive pulmonary disease (COPD) is denied. Entitlement to a disability rating in excess of 20 percent for chronic left Achilles tendonitis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's residuals of pneumonia with left lower lung scar and COPD manifested by no worse than FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) 56 to 65 percent predicted. 2. For the entire period on appeal, the Veteran's chronic left Achilles tendonitis manifested by no worse than marked limitation of motion of the ankle without ankylosis or malunion of the tibia and fibula 3. The Veteran was not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities for any period on appeal. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 30 percent for residuals of pneumonia with left lower lung scar and COPD have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.73, Diagnostic Codes 6817-6604. 2. The criteria for an increased disability rating in excess of 20 percent for chronic left Achilles tendonitis have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R.§§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024-5271. 3. The criteria for a TDIU rating have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to April 1971. The Veteran died in September 2016, and the Appellant is his surviving spouse. The Appellant testified during a July 2017 videoconference hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the hearing has been associated with the claims file. The above listed issues were denied in a July 2018 decision, which the Appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Veteran's representative and VA General Counsel filed a joint motion for partial remand (JMPR) regarding the issues above. The Court granted the joint motion and the Board remanded the claims in November 2019 for further development consistent with the JMPR. Before the Court, the VA and Appellant agreed that the Board erred because 1) it failed to provide an adequate statement of reasons or bases in denying TDIU; and 2) it failed to ensure that VA fulfilled its duty to assist, specifically regarding obtaining medical treatment notes that were referenced in the record but were not located in the claims file. The claims were remanded by the Board in November 2019 and December 2020 to comply with the Court's directive to obtain the outstanding medical treatment notes. The record shows that three attempts were made to obtain the missing records, and the Appellant was notified in February 2021 that such records were determined to be unavailable. Therefore, there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Increased Rating Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran's current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 1. Entitlement to a disability rating in excess of 30 percent for residuals, chronic pneumonia with left lower lung scar and chronic obstructive pulmonary disease (COPD) The Veteran's service-connected recurrent residuals of pneumonia with left lower lung scar and COPD is rated as 30 percent disabling from June 29, 1998, under Diagnostic Codes 6817-6604. A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional diagnostic code is shown after the hyphen. Diagnostic Code 6817 addresses Pulmonary Vascular Disease, and Diagnostic Code 6604 addresses COPD. Under Diagnostic Code 6604, a 30 percent rating is warranted for a forced expiratory value (FEV-1) or FEV-1/forced vital capacity (FVC) of 56 to 70 percent actual or predicted, or; DLCO (SB) of 56 to 65 percent predicted. A 60 percent rating is warranted for a FEV-1/FVC of 40 to 55 percent actual or 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. A 100 percent rating is warranted for a FEV-1/FVC of less than 40 percent actual or 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; where outpatient oxygen therapy is required. 38 C.F.R. § 4.97, Diagnostic Code 6604. Further, under 38 C.F.R. § 4.96 (d), there are special provisions for the application of evaluation criteria for certain Diagnostic Codes, including 6604. (1) Pulmonary function tests (PFTs) are required to evaluate these conditions except: (i) When the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less. If a maximum exercise capacity test is not of record, evaluate based on alternative criteria. (ii) When pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed. (iii) When there have been one or more episodes of acute respiratory failure. (iv) When outpatient oxygen therapy is required. (2) If the DLCO (SB) test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. (3) When the PFTs are not consistent with clinical findings, evaluate based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. (4) Post-bronchodilator studies are required when 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. (5) 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. In those cases, use the pre-bronchodilator values for rating purposes. (6) When there is a disparity between the results of different PFTs (FEV-1, FVC, etc.), 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 disability. (7) If the FEV-1 and the FVC are both greater than 100 percent, do not assign a compensable evaluation based on a decreased FEV-1/FVC ratio. In evaluating the Appellant's increased rating claim, the Board has also considered whether a separate or higher rating is warranted under other potentially applicable diagnostic codes referable to respiratory disabilities; however, the rating schedule provides that Diagnostic Codes 6600 - 6817 and 6822 - 6847 will not be combined with each other. 38C.F.R.§4.96(a) (2017). Where there is lung or pleural involvement, ratings under Diagnostic Codes 6819 and 6820 will not be combined with each other or with Diagnostic Codes 6600 through 6817 or 6822 through 6847. Id. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher rating where the severity of the overall disability warrants such rating. Id. Therefore, the Board has evaluated the Veteran's COPD under Diagnostic Code 6604, as it most accurately describes the Veteran's predominant disability. Based upon a review of the evidence, the Board finds that the preponderance of evidence weighs against the appellant's claim of entitlement to an increased disability rating in excess of 30 percent for residuals of pneumonia with left lower lung scar and COPD, as the Veteran's symptoms have not more nearly approximated the criteria for a 60 percent disability rating, or greater, at any time during the appeal period. In November 2011, private treatment records from Kaiser Permanente indicate the Veteran was seen for a COPD exacerbation. Treatment notes from the following month document PFTs with post-bronchodilator FEV-1 of 95 percent predicted and FEV-1/FVC of 64 percent. He was seen for pneumonia in January 2012. The Veteran was afforded a VA examination in February 2013, during which he reported worsening pneumonia each year that requires antibiotics and an inhaler. The Veteran also reported worsening shortness of breath which impaired physical activity. His condition was noted to require intermittent courses or bursts of systemic (oral or parenteral) corticosteroids, with only one course or burst in the past 12 months, as well as intermittent inhalational bronchodilator therapy. Post-bronchodilator PFTs included FEV-1 of 114 percent and FEV-1/FVC of 64 percent. Private treatment notes dated in May 2014 indicate the Veteran had unspecified chronic bronchitis that was stable, and he was advised to stop smoking. During a June 2014 VA examination, the Veteran reported experiencing increasing dyspnea and bronchitis in the winter, with otherwise stable breathing symptoms. The Veteran informed the examiner that he preferred not to do repeat PFTs, and because the examiner suspected they were likely unchanged, the tests were not performed. Additionally, the examiner noted that the Veteran's main problem of COPD and emphysema were caused by smoking. At the Veteran's most recent VA examination in April 2016, he reported experiencing increased breathing difficulty with physical activity. He did not require the use of oral or parenteral corticosteroid medication, but was noted to use inhalation bronchodilator therapy, inhalational anti-inflammatory medication, Albuterol, and ipratropium bromide on a daily basis. The examiner noted in the report that the Veteran's PFTs from September 2015 documented post-bronchodilator FEV-1 of 74 percent and FEV-1/FVC of 81percent, which the examiner stated accurately reflected the Veteran's current pulmonary function. Finally, the examiner noted functional impact from the Veteran's respiratory conditions, including dyspnea upon exertion and wheezing with physical activities. The objective evidence of record fails to show that the Veteran's residuals of pneumonia with left lower lung scar and COPD resulted in 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 20ml/kg in with cardiorespiratory limitation for any period on appeal to warrant a 60 percent rating. See 38C.F.R. § 4.73, Diagnostic Code 6604. Further, the Veteran's condition did not result in more severe PFTs, or maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiac or respiratory limitation, or; cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), or; episodes of acute respiratory failure, or outpatient oxygen therapy for any period on appeal. Id. Therefore, the Board finds that the preponderance of evidence weighs against the Appellant's claim of entitlement to an increased disability rating in excess of 30 percent for the Veteran's residuals of pneumonia with left lower lung scar and COPD for the entire period on appeal. As such, there is no reasonable doubt to be resolved, and the claim must be denied. See 38U.S.C.§5107(b); 38C.F.R.§§3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a disability rating in excess of 20 percent for chronic left Achilles tendonitis The Veteran contends that he is entitled to a higher rating for his chronic left Achilles tendonitis. His disability is currently rated as 20 disabling under Diagnostic Codes 5024-5271. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. As previously noted, the Veteran's service-connected left ankle chronic Achilles tendonitis is currently rated under Diagnostic Code 5024-5271. See 38 C.F.R. § 4.71a. Review of the portion of the rating schedule that addresses the musculoskeletal system revised effective February 7, 2021, shows that Diagnostic Codes 5024 and 5271 were changed. As a result, the Board will consider the Veteran's claim under Diagnostic Code 5024 and 5271 pursuant to the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. Again, the criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5024 provides for tenosynovitis. The diseases under diagnostic codes 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under Diagnostic Code 5002. As of February 7, 2021, under the amended criteria, Diagnostic Code 5024 provides for tenosynovitis, tendinitis, tendinosis, or tendinopathy. The diseases are to be evaluated under Diagnostic Codes 5013 through 5024 as degenerative arthritis, based on limitation of motion of affected parts. In this case, the record fails to show the Veteran was diagnosed with arthritis of the left ankle. Under Diagnostic Code 5271 prior to the regulatory change, a maximum 20 percent rating is warranted for marked limited motion of the ankle. Id. As of February 7, 2021, under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran. Prior to his death, the Veteran was in receipt of the highest schedular rating for limited motion of the ankle, and there is no basis to award a higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The evidence, including VA examination reports from February 2013 and May 2015 and recently submitted private records, fails to show the Veteran had ankylosis of the left ankle, an astragalectomy, or malunion of the calcaneus or talus. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 20 percent for chronic left Achilles tendonitis. As such, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55 (1990). TDIU Criteria A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38C.F.R.§4.16(a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under §4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. If the schedular requirements for TDIU are not satisfied, but the veteran is still found unemployable due to service-connected disabilities, the case will be submitted to the Director of the Compensation Service (Director) for extra-schedular consideration. 38 C.F.R. § 4.16 (b). Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In reaching a decision, it is necessary that the record reflect some factor, which takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38C.F.R.§§4.1, 4.15 (2017); See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). 3. Entitlement to a TDIU Prior to his death, the Veteran was service-connected for residuals of pneumonia with left lower lung scar and COPD, rated as 30 percent disabling from August 13, 1996, and chronic left Achilles tendonitis rated as 20 percent disabling from June 10, 1992). The Veteran's combined 40 percent disability rating from August 13, 1996 does not meet the schedular requirements for assignment of a TDIU for any period on appeal. 38 C.F.R. § 4.16 (a). The Board also finds that the Veteran was not entitled to a TDIU on an extraschedular basis under 38C.F.R.§4.16 (b), and referral to the Director is not warranted. In December 2014, the Veteran's friends and co-workers submitted lay statements, explaining that the Veteran's respiratory problems continued to worsen, and interfered with his ability to perform physical activities. Additionally, the Appellant testified at the Board hearing regarding the Veteran's difficulty with working due to his left ankle and respiratory disabilities. We note that the Veteran's co-workers, friends, and family are competent to report the Veteran's observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such statements must also be considered in conjunction with the clinical evidence of record. A review of the medical evidence shows that in a March 2012 letter, the Veteran's private physician stated that the Veteran should be allowed to wear a respirator at work. A February 2013 VA examiner determined that the Veteran would be able to perform sedentary employment due to his chronic left Achilles tendonitis, and noted that the Veteran was adequately managing employment at the time of the examination. During a June 2014 VA respiratory examination, the Veteran reported that he was working full time. The examiner determined that the Veteran's disability did not impact his ability to work. In May 2015, the Veteran was afforded another VA examination to assess his left ankle disability. The examiner noted that the Veteran retired during the previous year due to the physical limitations caused by his left ankle disability. At an April 2016 VA respiratory examination, the examiner stated that the Veteran's respiratory disability impacted his ability to work by causing dyspnea on exertion and wheezing when physically active. The Veteran submitted a formal TDIU application in April 2015, and indicated he was unable to secure or follow any substantially gainful occupation due to his service-connected disabilities. However, he also stated that he did not leave his last job in 2014 due to his disabilities. He indicated that he had a high school education without any additional training. In a letter submitted in April 2015, the Veteran's former employer confirmed that the Veteran retired from being a rigger worker in May 2014, but did not indicate that it was due to any disability. Another former employer indicated that the Veteran resigned from his role as a sale associate due to a "home injury." (Continued on the next page) In summary, the Board finds that the weight of the lay and medical evidence does not demonstrate that the Veteran was precluded from securing or following substantially gainful employment solely by reason of his service-connected disability or that he was incapable of performing the mental and physical acts required by employment due solely to his service-connected disorders, even when his disability is assessed in the context of subjective factors such as his occupational background and level of education. As noted above, the Veteran indicated on his TDIU form that he did not stop working due to his service-connected disabilities, nor did his former employers indicate he resigned from his roles due to service-connected disabilities. Further, none of the VA examiners nor the Veteran's private physicians ever indicated that the Veteran was precluded from all employment due to his service-connected disabilities. Based on the Board's review, the evidentiary record fails to demonstrate that the Veteran was unemployable due solely to his service-connected disabilities. Accordingly, the preponderance of the competent and probative evidence is against finding the Veteran was entitled to a TDIU evaluation, to include on an extraschedular basis. As such, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.