Citation Nr: A25035358 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 241002-479546 DATE: April 16, 2025 ORDER A disability rating in excess of 10 percent for service-connected chronic obstructive pulmonary disease (COPD) with asbestosis is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran's service-connected COPD with asbestosis is manifested by forced expiratory volume in 1 second (FEV-1) 70-percent or less predicted; or, FEV-1/forced vital capacity (FVC) 70 percent or less; or, a diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) of 65 or less; and, maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation) is not shown; the Veteran is not shown to have cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), or an episode of acute respiratory failure, and he does not requiring outpatient oxygen therapy during the relevant appeal period. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for service-connected chronic obstructive pulmonary disease (COPD) with asbestosis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.97, Diagnostic Code 6604. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1961 to July 1963. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 21, 2024 rating decision by the Regional Office (RO), which is an agency of original jurisdiction. In that rating decision, the RO continued a 30 percent disability rating for service-connected COPD with asbestosis. On October 2, 2024, the AOJ received the Veteran's VA Form 10182 (Notice of Disagreement) in which he elected the Board Hearing docket. On January 7, 2025, the Veteran testified at a virtual tele-hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. Therefore, the Board may only consider the evidence of record at the time of the August 21, 2024 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his attorney at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to a disability rating in excess of 10 percent for service-connected chronic obstructive pulmonary disease (COPD) with asbestosis. The Veteran is seeking a higher rating for his service-connected COPD and asbestosis. At the June 2024 VA examination, the Veteran reported that he has a history of trouble breathing with diagnosis of dyspnea on exertion. The Veteran's service-connected COPD with asbestosis is currently rated as 10 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6604, which evaluates COPD. Under Diagnostic Code 6604, Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66- to 80-percent predicted, is rated as 10 percent disabling. 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, warrants a 30 percent disability rating. 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), is rated 60 percent disabling. 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 is 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, is rated 100 percent disabling. 38 C.F.R. § 4.97. Ratings under Diagnostic Codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. 38 C.F.R. § 4.96(a). Additionally, there are special provisions for the application of evaluation criteria for Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845. See 38 C.F.R. § 4.96(d). When there is a disparity between the results of different Pulmonary Function Tests (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 reflect the level of disability. 38 C.F.R. § 4.96(d)(6). When evaluating based on PFTs, post-bronchodilator results are to be used, unless the post-bronchodilator results are poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5). Finally, if the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio should not be assigned. 38 C.F.R. § 4.96(d)(7). The Veteran underwent a VA examination in June 2024. During the examination, the Veteran reported that he has trouble breathing and has dyspnea on exertion. He is prescribed TRELEGY inhaler and levalbuterol inhaler. Chest x-rays in July 2023 show pleural disease. CT of the chest shows mild bibasilar atelectasis and small effusion. The June 2024 VA examination documents the results from PFT testing conducted in May 2023. The PFT results reveal post-bronchodilator FVC was 58 predicted, FEV-1 was 59 percent predicted, and FEV-1/FVC was 77 percent. The examiner did not document the results of DLCO. The examiner explained that DLCO testing was not completed because it was not indicated for the Veteran's condition. The examiner determined the result for FEV-1/FVC most accurately reflects the Veteran's level of disability. The June 2024 VA examination reveals that the Veteran's COPD with asbestosis does not require the use of oral or parenteral corticosteroid medications, antibiotics, or outpatient oxygen therapy. However, it does require daily use of inhalational bronchodilator therapy and oral bronchodilators. A June 2024 private treatment record shows that pre-bronchodilator PFT results were FVC 74 percent predicted, FEV-1 75 percent predicted, FEV-1/FVC 71 percent. Post-bronchodilator PFT results were FVC of 71 percent predicted, FEV-1 68 percent predicted, and FEV-1/FVC of 95 percent. As the post-bronchodilator result is poorer than the pre-bronchodilator result for FEV-1, the pre-bronchodilator results for FEV-1 must be used in rating his service-connected COPD with asbestosis. 38 C.F.R. § 4.96(d)(5). However, the post-bronchodilator results must be used for FEV-1/FVC. Id. The Veteran is competent to report his respiratory symptoms. Furthermore, the Veteran's statements regarding the impact of COPD and asbestosis on his daily life are noted and considered, but as noted above, the assignment of disability ratings are primarily based on the results of pulmonary function tests. Thus, there is no discretion in this matter and the rating criteria is predicated on the results of the pulmonary function tests of record. Furthermore, during the January 2025 Board hearing, the Veteran and his agent raised the issue of competency of the VA examiner that conducted the June 2024 VA examination. The Veteran testified that the examiner was not a respiratory nurse and the examiner informed him that she was a phlebotomist during the examination. QTC medial services, a VA contractor who schedules VA examinations, sent a letter to the Veteran in June 2024. The letter informed the Veteran of the June 2024 VA examiner's qualifications. The letter specifically noted that the examiner is an adult certified nurse practitioner. Her medical career began in 1997 and her VA compensation experience began in 2002. She received a master's degree from Rutgers in 2018. There is no indication that any greater level of specialized training is required to perform pulmonary function tests. As a general matter, there is no requirement that a medical examination be conducted by a physician. See Cox v. Nicholson, 20 Vet. App. 563, 568 (2007) (citing Goss v. Brown, 9 Vet. App. 109, 114 (1996)). The United States Court of Appeals for Veterans Claims (Court) has already rejected the contention that a nurse practitioner is not competent to either conduct a VA examination or to render a medical opinion. See Cox, 20 Vet. App. at 569. Specifically, the Court held that "[a] nurse practitioner, having completed medical education and training, [ ] fits squarely into the requirement of [38 C.F.R.] § 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions." Id. A registered nurse practitioner, such as the one who conducted the Veteran's VA examination in June 2024, has "advanced education and clinical training in a specialized area of health care" and "can diagnose, prescribe, and perform procedures." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1326 (31st ed. 2007). As a nurse practitioner is qualified to examine patients and diagnose disorders, the Board finds that the adult nurse practitioner was competent to evaluate the current severity of the Veteran's service-connected COPD with asbestosis. Further, there is no evidence of record to support the agent's assertion that a nurse practitioner is not competent to provide medical findings addressing the Veteran's COPD with asbestosis. The examiner addressed all of the necessary criteria in evaluating the Veteran's COPD with asbestosis in the VA examination report. Thus, the Board finds that the June 2024 VA examiner is competent to conduct the VA examination that evaluated the current severity of the Veteran's service-connected COPD with asbestosis. In light of the foregoing, the evidence of record persuasively weighs against finding that the Veteran's service-connected COPD with asbestosis is manifested by FEV-1 of 70 percent or less predicted, FEV-1/FVC of 70 percent or less, or DLCO (SB) 65 or less. There is also no evidence of record to support that the Veteran's COPD with asbestosis resulted in maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), an episode of acute respiratory failure, or outpatient oxygen therapy. Accordingly, the Veteran's service-connected COPD with asbestosis does not more closely approximate a disability rating in excess of 10 percent at any time during the relevant appeal period. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.