Citation Nr: 0007879 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-11 903A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an increased rating for small airway disease with restrictive component and history of bronchitis, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William D. Teveri, Associate Counsel INTRODUCTION The veteran served on active duty from January 1941 to July 1945, and from May 1947 to August 1947. This appeal arises from a February 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. That decision also denied increased ratings for the veteran's service-connected hemorrhoidectomy and sinusitis. The veteran did not appeal those determinations. The Board also notes that a VA Form 21-6789 Deferred Rating Decision contains a statement from the veteran's representative which informed the RO that the veteran did not want a personal hearing. FINDING OF FACT The veteran's service-connected small airway disease with restrictive component and history of bronchitis is manifested by pre-bronchodilator FEV-1 of 71 percent of predicted, by post-bronchodilator FEV-1 of 60 percent of predicted, by FEV- 1/FVC of 69 percent of predicted, and by DLCO (SB) of 73 percent of predicted. CONCLUSION OF LAW The criteria for an increased rating for service-connected small airway disease with restrictive component and history of bronchitis, currently rated as 30 percent disabling, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.96, 4.97, Diagnostic Code 6600 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board finds the veteran's increased rating claim well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran is found to have presented a claim which is not inherently implausible, inasmuch as a mere allegation that a service-connected disability has increased in severity is sufficient to establish an increased rating claim as well grounded. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 623 (1992). Further, after examining the record, the Board is satisfied that all relevant facts have been properly developed in regard to his claims and that no further assistance to the veteran is required to comply with the duty to assist, as mandated by 38 U.S.C.A. § 5107(a). Additionally, in accordance with 38 C.F.R. §§ 4.1-4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disability. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence on file is inadequate for proper rating purposes. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities which is based on the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.1; Fenderson v. West, 12 Vet. App. 119, 125 (1999). The basis of disability ratings is the ability of the body as a whole, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Although the history of a disability must be considered, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Documents created in proximity to the recent claim are the most probative in determining the current extent of impairment. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes the veteran was service-connected only for bronchitis until an August 1990 RO decision, which added small airway disease, restrictive lung disease, and respiratory alkalosis, pursuant to a July 1990 VA pulmonary examination and pulmonary function test, although no medical opinion at that time, or since then, related those diseases with either the veteran's active duty service or as due to his service-connected bronchitis. Current medical evidence indicates the veteran has now been diagnosed with chronic bronchitis, chronic obstructive pulmonary disease (COPD), emphysema, and bronchial asthma, again with no medical opinion relating the latter diseases with either the veteran's active duty service or as due to his service- connected bronchitis. He has also been diagnosed with chronic allergic rhinitis, but a November 1997 VA examination report indicates the physician rendered an unequivocal opinion that this disease was not related to the veteran's active duty service. Hence, to date, only chronic bronchitis has been medically related to the veteran's active duty service. To the veteran's benefit, however, by regulatory amendment effective October 7, 1996, substantive changes were made to the schedular criteria for rating respiratory disorders, as set forth in 38 C.F.R. § 4.97. See 61 Fed. Reg. 46727 (1996). As the veteran filed his claim for increase in October 1997, only the revised criteria are used to rate his pulmonary disability. See Karnas v. Derwinski, 1 Vet. App. 308, 312- 313 (1991). Under the revised criteria chronic bronchitis is rated in accordance with the findings of a pulmonary function test (PFT), which renders numerical findings based upon the functioning of the veteran's lungs, regardless of whether those findings are the result of one, or all, of the veteran's various pulmonary disabilities, whether service- connected or not. As the evidence shows the veteran formerly smoked cigarettes, any pulmonary disability effects caused by that act are also included in the numerical findings, even though by current law a veteran's disability or death is not considered to have resulted from disease contracted in the line of duty in the active military, naval, or air service on the basis that it resulted from disease attributable to the use of tobacco products by the veteran during his active duty service. See 38 U.S.C.A. § 1103. Accordingly, the veteran is in the unique position of having his service-connected chronic bronchitis rated by the effect upon his pulmonary function of all his pulmonary disorders, even those that are not service-connected. Disabilities of the trachea and bronchi are rated in accordance with 38 C.F.R. § 4.97, Diagnostic Codes (DC) 6600- 6604. 38 C.F.R. § 4.96, which, in part, provides regulations for rating coexisting respiratory conditions, indicates that ratings under diagnostic codes 6600 through 6604 will not be combined with each other. The Board notes that the RO, in the June 1998 statement of the case, rated the veteran's pulmonary disabilities under DC 6604, which rates COPD. As the veteran's original service- connected disability, as noted above, was chronic bronchitis, and as the requirements for a 60 percent rating under either DC 6600, which rates chronic bronchitis, or DC 6604 are identical in every respect, the Board has chosen to rate the veteran's disabilities under DC 6600. As noted below, other codes will be considered also. The Board's selection of a diagnostic code may not be set aside as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law," if relevant data is examined and a reasonable basis exists for its selection. See Tedeschi v. Brown, 7 Vet. App. 411, 413-14 (1995); Butts v. Brown, 5 Vet. App. 532, 539 (1993). Under DC 6600, DC 6603 (which rates pulmonary emphysema), and DC 6604, which rates COPD, a 30 percent rating requires that the results of a PFT must show FEV-1 (forced expiratory volume in one second) results of 56-70 percent of predicted, or FEV-1/FVC (forced vital capacity) of 56-70 percent of predicted, or DLCO (SB) (diffusion capacity of carbon monoxide, single breath) of 56-65 percent of predicted. For the next highest rating, 60 percent, the results of a PFT must show FEV-1 results of 40-55 percent of predicted, or FEV-1.FVC of 40-55 percent of predicted, or DLCO (SB) of 40- 55 percent of predicted, or maximum oxygen consumption of 15- 20 milliliters/kilogram/minute (with cardiorespiratory limit). The most current medical evidence and PFT results of record, see Francisco, supra, is a November 1997 VA examination report. That respiratory examination report indicates that pre-bronchodilator FEV-1 was 71 percent of predicted, and that post-bronchodilator FEV-1 was 60 percent of predicted. FEV-1/FVC was 69 percent of predicted. DLCO (SB) was 73 percent of predicted. Accordingly, under either DC 6600, DC 6603, or DC 6604, the preponderance of the evidence is against an increased rating for the veteran's service- connected small airway disease with restrictive component and history of bronchitis. The Board notes the results of a March 1997 PFT also do not meet the criteria for a 60 percent rating under any applicable code. Even if the symptoms of the veteran's bronchial asthma were considered under DC 6602, which rates that disability, the Board notes the medical evidence does not indicate the PFT requirements (FEV-1 of 40-55 percent of predicted, or FEV- 1/FVC of 40-55 percent of predicted) for a 60 percent rating are shown, or that at least monthly visits to a physician for required care of exacerbations of bronchial asthma are shown, or that intermittent courses of systemic (oral or parenteral) corticosteroids are prescribed. Thus, even under that code the medical evidence does not reveal the requirements for a 60 percent rating are met. Accordingly, the preponderance of the evidence is against an increased rating for the veteran's service-connected small airway disease with restrictive component and history of bronchitis. In reaching this decision the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board also notes the veteran's and his representative's requests for a new PFT. They have, however, provided no basis for that request as they have produced no medical evidence indicating the test results were flawed or in error, or that any other reason, other than dissatisfaction with the knowledge that the current evidence does not warrant an increased rating, dictates a new test. The Board also notes neither the veteran nor his representative have asserted an actual increase in severity of the veteran's chronic bronchitis since the November 1997 examination. 38 C.F.R. § 3.327(a) provides that reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. However, in the absence of assertions or evidence that the disability has undergone an increase in severity since the time of the last examination, the passage of time since an otherwise adequate examination would no necessitate a new examination. See VAOPGCPREC 11-95; 60 Fed. Reg. 43, 186 (1995); Voerth v. West, No. 95-904, slip op. at 4 (U.S. Vet. App. Oct. 15, 1999). The same is true with allegations of periods of exacerbations, or active and inactive periods of a disease. See 38 C.F.R. § 4.1; Id ORDER An increased rating for small airway disease with restrictive component and history of bronchitis, currently rated as 30 percent disabling, is denied. BRUCE KANNEE Member, Board of Veterans' Appeals