Citation Nr: 25003353 Decision Date: 03/11/25 Archive Date: 03/11/25 DOCKET NO. 15-33 595 DATE: March 11, 2025 REMANDED Entitlement to higher ratings for bronchiectasis, currently rated as noncompensable from August 28, 2013, to January 6, 2020; 30 percent disabling from January 6, 2020, to March 4, 2022; and 60 percent disabling thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1972 to March 1974, including foreign service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Board issued a decision that denied a rating greater than 0 percent prior to January 6, 2020, and a rating greater than 30 percent from January 6, 2020, for bronchiectasis. The Veteran appealed the denial to the Court of Appeals for Veterans Claim (CAVC). In a July 2021 Order, pursuant to a Joint Motion for Partial Remand (JMPR) filed by the parties, the Court vacated and remanded the October 2020 decision for compliance with the instructions in the JMPR. The Board has remanded this matter multiple times in attempts to obtain a medical opinion that substantially complies with the July 2021 JMPR. It was last before the Board in February 2024. 1. Entitlement to higher ratings for bronchiectasis, currently rated as noncompensable from August 28, 2013, to January 6, 2020; 30 percent disabling from January 6, 2020, to March 4, 2022; and 60 percent disabling thereafter is remanded. Both parties of the Joint Motion agreed the Board erred, in pertinent part, by relying on VA examinations dated in June 2014 and in January 2020 which did not explain why the DLCO (SB) (Diffusion capacity of the Lung for Carbon Monoxide by Single Breath Method) test was not used at either examination in violation of 38 C.F.R. § 4.96(d)(2). Specifically, the parties agreed that as the examiners did not state why the test would not be useful or valid, the examination of record did not satisfy 38 C.F.R. § 4.96 (d)(2) criteria. Both parties also argued that, on remand, another examination should be scheduled which addresses this matter. The Board then remanded the matter in November 2021, finding that a new VA examination was required. Although an examination was provided in March 2022, the examiner did not conduct DLCO testing, but requested that the Veteran be scheduled for such. An attached addendum states that the Veteran was scheduled for DLCO testing in June 2022 but did not attend the examination. The matter was remanded in October 2022 so that the Veteran could be afforded a new examination that included all necessary tests and studies. In doing so, the Board directed the examiner to explicitly explain why DLCO testing would not be useful or valid in evaluating the Veteran's disability. Thereafter, a VA examination report completed in March 2023 indicates that the Veteran was examined in November 2022, and that he underwent DLCO testing in March 2023. In Section IV of the examination report, the examiner indicated FEV-1% predicted was the test that most accurately reflected the Veteran's level of disability; however, he did not explain why use of the DLCO test results would not be useful and/or valid despite the Board's instruction in the October 2022 remand. The appeal was remanded in May 2023. In accordance with the May 2023 remand, an examination was obtained in July 2023. Again, the DLCO testing was not completed. While the May 2023 remand specifically asked the examiner to explain why DLCO testing could not be conducted or why the test is not appropriate for this Veteran, the examiner only checked a box noting that the DLCO testing was not completed because "not indicated for Veteran's condition." As noted above, the Parties to the JMPR agreed that an examination that does not state why the DLCO test would not be useful or valid does not satisfy 38 C.F.R. § 4.96 (d)(2) criteria, specifically stating that checking "not indicated for Veteran's condition" does not satisfy 38 C.F.R. § 4.96 (d)(2) criteria. Therefore, the matter was remanded again in February 2024. In March 2024, a VA examiner stated that "DLOC was not used because it was not warranted. I did not order the testing and one should be ordered if required." In October 2024 and November 2024, the AOJ requested an addendum opinion addressing why the DLCO test would not be useful or valid for this Veteran's condition. A November 2024 VA examiner indicated that an attempt had been made to schedule the Veteran for DLCO but was unsuccessful. A November 2024 Report of General information notes that the Veteran called on November 27, 2024 to reschedule the bronchiectasis appointment. He explained that he missed the examination because he was never contacted for the appointment. The Veteran indicated he will make the rescheduled examination. On review, there is no indication that the Veteran was sent notice by the examiner or VA for the scheduled DLCO examination. As the Veteran has indicated he did not receive notice for the appointment, the Board finds that he has shown good cause for missing this appointment and should be provided an opportunity to attend the DLCO testing. The matters are REMANDED for the following action: 1. Schedule the Veteran for a DLCO test as part of a Compensation and Pension examination. Any other necessary testing must be performed as well. All efforts to schedule the examination must be documented in the claims file. The examiner must state whether the FEV-1% predicted or the DLCO results most accurately reflects the Veteran's level of disability. This opinion must be supported by a clear explanation of why one is more accurate than the other. Just checking "not indicated for Veteran's condition" is NOT sufficient. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asare, Ama K. 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.