Citation Nr: 21041292 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-04 743 DATE: July 8, 2021 ISSUE Entitlement to initial rating for a lung disability to include asthma and chronic obstructive pulmonary disease (COPD), currently evaluated as 30 percent disabling. REMANDED The issue of entitlement to a higher initial rating for lung disability to include asthma and chronic obstructive pulmonary disease (COPD), currently evaluated as 30 percent disabling, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1987 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Washington DC. By way of background, this Veteran was originally granted service connection for asthma in May 2014 rating decision and assigned a 30 percent disability rating under DC 6602 for bronchial asthma. See May 5, 2014 rating decision. The Veteran was subsequently granted service connection in a December 2016 rating decision for COPD. A single evaluation was assigned under asthma, together with the COPD under the diagnostic code which reflects the predominant disability. See December 22, 2016 rating decision. Additionally, this matter was previously before the Board in January 2019. In that decision, the Board remanded the Veteran's claim for a new VA examination to determine the current severity of this Veteran's lung disability, to include asthma and chronic obstructive pulmonary disease. While the examination did place, the Board finds that there has not been substantial compliance with the January 2019 remand. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to initial rating for a lung disability to include asthma and chronic obstructive pulmonary disease (COPD), currently evaluated as 30 percent disabling is remanded. Pursuant to the Board's January 2019 remand, the Veteran was afforded a VA Respiratory Conditions examination in October 2019. See October 28, 2019 Respiratory Conditions examination. The examiner noted the Veteran's diagnosis of asthma in 1988 and COPD in 2015. The examiner reviewed the Veteran's medical history. The examiner noted that the Veteran's respiratory condition required the use of daily inhalational bronchodilator therapy and inhalation anti-inflammatory medication and but not oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. See October 28, 2019 Respiratory Conditions examination, pgs. 1-2. The examiner noted review of imaging studies, ie., Chest-rays, CT scans. Id. at pgs. 3-6. The Veteran's PFT's showed post-bronchodilator FEV-1 of 67 percent predicted and FEV-1/FVC of 65 percent. Pre-bronchodilator FEV-1 was 53 percent predicted and FEV-1/FVC was 57 percent. Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO) was 111 percent predicted. Id. at 6. In the case, the Board notes that the examiner references PFT's performed in 2015 with no indication of pending PFT results in the October 2019 examination report. The Board notes that in evaluating the lung diseases at issue, pulmonary function tests (PFTs) are required 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, evaluation is 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. 38 C.F.R. § 4.96 (d)(1). Post-bronchodilator results 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. See 38 C.F.R. § 4.96 (d)(4). In its January 2019 remand, the examiner was instructed to evaluate the current severity of this Veteran's asthma and COPD disability. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board finds that remand for a new VA examination is required to include all appropriate diagnostic testing (PFT's) to determine the current level of severity of this Veteran's asthma and COPD disability. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board also notes that in July 2020 correspondence, the Veteran states that he is followed by Dr. Kim (pulmonary physician) and Dr. Bain (primary care physician), both of whom have followed the Veteran for years. See July 1, 2020 Correspondence, date June 23, 2020. The Board observes that medical records from these physicians have been associated with the record. Accordingly, this matter is REMANDED for the following action: 1. Obtain all outstanding VA and private treatment records relevant to the matter being remanded, to include from Dr. Bain and Dr. Woo, and obtain any necessary authorizations for such records. 2. After the above development, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected lung disability. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing, to include Pulmonary Function tests, deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations and functional impairment related to the Veteran's service-connected lung disability. (Continued on next page.) 3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether an increased initial rating may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.