Citation Nr: 21040912 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 14-99 795A DATE: July 7, 2021 ORDER Entitlement to an initial 60 percent rating, but no higher, for chronic obstructive pulmonary disease (COPD) with asbestos-related pleural disease is granted from November 30, 2010. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's COPD with asbestos-related pleural disease has been manifested by Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) between 40 to 55 percent. CONCLUSION OF LAW The criteria for a 60 percent rating, but no higher, for COPD with asbestos-related pleural disease are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.96, 4.97, Diagnostic Code (DC) 6604. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1960 to December 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by a Department of Veterans Affairs (VA) RO, which granted service connection for asbestos-related pleural disease with calcified pleural plaques and assigned a noncompensable rating, effective November 30, 2010. The Veteran testified before the undersigned in March 2018. In May 2018, the Board remanded the appeal for further development. In a November 2018 rating decision, the RO granted service connection for COPD and combined this disability with his already service-connected asbestos-related pleural disease with calcified pleural plaques and assigned a 10 percent rating, effective November 21, 2011. In August 2020, the Board remanded the appeal again for further development. In an April 2021 rating decision, the RO awarded an earlier effective date of November 30, 2010 and assigned a 10 percent rating until March 23, 2021 where the RO awarded an increased 30 percent rating. Although a higher rating has been assigned by the RO, the increased rating claim remains in appellate status as the maximum rating has not been assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Ratings 1. Entitlement to an initial 60 percent rating, but no higher, for COPD with asbestos-related pleural disease is granted from November 30, 2010. I. General Rating Principles Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. II. Rating Criteria The Veteran asserts that his service-connected COPD with asbestos-related pleural disease warrants an increased evaluation. See November 2011 and May 2012 Notice of Disagreement (NOD); February 2013 Third Party Correspondence; March 2018 Board Hearing Transcript; and June 2021 Appellant's Post-Remand Brief. The Veteran's service-connected COPD with asbestos-related pleural disease is currently evaluated under the provisions of 38 C.F.R. § 4.97, DCs 6833-6604. The Board notes that when the particular service-connected disability is not listed in the rating schedule, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27. DC 6604 contemplates COPD while DC 6833 contemplates asbestosis. As the rating criteria under DC 6604 for COPD affords the Veteran a higher evaluation, the Board will apply DC 6604 for more favorable rating purposes. Under DC 6604, a 100 percent rating is assigned for FEV-1 less than 40 percent predicted; FEV-1/FVC less than 40 percent; DLCO (SB) less than 40 percent predicted; maximum exercise capacity less than 15 ml/kg in oxygen consumption; cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension; acute respiratory failure; or outpatient oxygen therapy. 38 C.F.R. § 4.97. A 60 percent rating is assigned for FEV-1 of 40 to 55 percent predicted; FEV-1/FVC of 40 to 55 percent; DLCO (SB) of 40 to 55 percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg. Id. A 30 percent rating is assigned for FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent, or DLCO (SB) of 56 to 65 percent predicted. Id. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are used for rating purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be performed and explains why. 38C.F.R. §4.96(d)(4). When evaluating a disability based upon PFT results, post-bronchodilator results are used unless they are poorer than the pre-bronchodilator results. If so, the pre-bronchodilator results are used. 38C.F.R. §4.96(d)(5). If the DLCO (SB) test is not of record, the VA may evaluate based on alternative criteria so long as the examiner states why the test would not be useful or valid in a particular case. 38C.F.R. §4.96(d)(2). III. Analysis The Veteran is currently in receipt of a 10 percent rating for his service-connected COPD with asbestos-related pleural disease from November 30, 2010, and a 30 percent rating from March 23, 2021. The appeal period is from November 30, 2010, the date of award of service connection for his disability. Here, the Board finds a 60 percent rating is warranted for the entire appeal period for reasons detailed below. Initially, the Board notes that the Veteran underwent two VA examinations during the appeal period, one in January 2020 and most recently in March 2021. However, the March 2021 examination is the only with adequate PFT results for rating purposes. Specifically, the January 2020 examination report did not include current PFT results and instead cited old results from July 2010 (notably this is prior to the applicable appeal period) and failed to provide DLCO testing or an explanation as to why these testing results were not provided. Thus, resolving reasonable doubt in the Veteran's favor, the Board will only use the adequate March 2021 examination report for rating purposes, as these results are more favorable to the Veteran and thus will not cause any prejudice to the Veteran. The March 2021 PFT results reflect post-bronchodilator FVC of 70 percent predicted, FEV-1 of 35 percent predicted, and FEV-1/FVC of 49 percent (most accurately reflecting disability). No DLCO results were recorded and the examiner provided an explanation, stating that the testing was not indicated in the Veteran's particular case. In addition, the examiner indicated that exercise testing was not performed, and the Veteran did not require outpatient oxygen therapy. Furthermore, there was no evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or acute respiratory failure at any time during the appeal period. Accordingly, the medical evidence of record supports a 60 percent rating, but no higher, for the entire appeal period based on the Veteran's FEV-1/FVC between 40 and 55 percent under the DC 6604 criteria. In this regard, the Board notes that a 100 percent rating is not warranted at any time during the appeal period even though a FEV-1 of 35 percent predicted was indicated on examination, corresponding with a 100 percent rating. Pursuant to 38 C.F.R. § 4.96(d)(6), when a disparity between the results of different PFTs (FEV-1, FVC, and FEV-1/FVC), the test result that the examiner states most accurately reflects the level of disability will be used. In this case, the March 2021 indicated the FEV-1/FVC result most accurately reflected the disability as noted above. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds the preponderance of the evidence shows a 60 percent rating, but no higher, is warranted from November 30, 2010. REASONS FOR REMAND 2. Entitlement to a TDIU is remanded. The evidence of record continues to show that the Veteran is no longer able to work due to his respiratory disability is part and parcel of the instant appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, pursuant to Harper, the TDIU claim remains in appellate status in conjunction with the claim for increased rating. See Harper v. Wilkie, 30 Vet. App. 356 (2018). In the Board most recent remand directives, the RO was instructed to develop the TDIU and afford the Veteran the opportunity to complete a VA Form 21-8940 and VA Form 21-4192. To date, the Board is not in receipt of the necessary forms. However, in the June 2021 Appellate Brief, the Veteran's representative indicated there are mitigating circumstances that have affected the Veteran's inability to complete and return the documentation. Thus, the Board will offer the Veteran another opportunity to development his TDIU claim and return the appropriate forms. The matters are REMANDED for the following action: Provide the Veteran and his representative with VA Forms 21-8940 and 21-4192. Notify the Veteran that if he fails to provide the requested information, his claim will be adversely affected. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.