CHRONIC BRONCHITIS

Summary

The Veteran, an Army Veteran who served from November 1998 to April 1999 and December 2003 to March 2005, appeals the denial of an increased rating for constructive bronchiolitis. The Veteran testified at a hearing in November 2020, describing symptoms including shortness of breath, chronic cough, dizziness, and cardiorespiratory limitations, and requested a 60 percent disability rating. The Veteran submitted multiple private medical opinions stating that constructive bronchiolitis is a distinct interstitial lung disease with no cure, causing significant or severe functional impairment, and that while not totally disabled, she will likely require oxygen therapy in the future. The Board found these private opinions persuasive, noting that constructive bronchiolitis is an obliterative process of the small airways and that current diagnostic testing may not accurately gauge severity. VA examinations in May 2015 and July 2019 diagnosed constructive bronchiolitis, with PFT results showing mild to moderate impairment. However, the Board found these VA exams did not fully capture the Veteran's disability picture, particularly cardiorespiratory limitations noted by private physicians. Applying the benefit of the doubt and liberally interpreting the rating schedule, the Board found a 60 percent rating warranted, as the Veteran's disability level most closely approximated the criteria for that rating, despite not strictly meeting the PFT requirements. The appeal was granted.

Rationale

Private physician opinions found constructive bronchiolitis causes significant/severe impairment and will likely require oxygen therapy.; Board found private physicians' characterization of disability level as significant/severe but not totally disabling most approximately contemplated by 60% rating criteria.; Constructive bronchiolitis is a distinct obliterative process of small airways, not clearly gauged by current PFTs.; Board liberally applied rating criteria given private physician statements and Veteran's testimony.

Full Decision Text

Citation Nr: 21016983
Decision Date: 03/24/21	Archive Date: 03/24/21

DOCKET NO. 16-58 842A
DATE: March 24, 2021

ORDER

A rating of 60 percent, but no higher, for constructive bronchiolitis is granted.

FINDING OF FACT

Throughout the period on appeal, the Veteran’s constructive bronchiolitis has been characterized by cardiorespiratory limitations and severe functional limitations.

CONCLUSION OF LAW

The criteria for a rating of 60 percent, but no higher, for constructive bronchiolitis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.96, 4.97, DC 6600.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty served in the Army from November 1998 to April 1999 and from December 2003 to March 2005. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision.

The Veteran testified before the Board at a hearing in November 2020. A transcript of the hearing has been associated with the claims file.

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Constructive Bronchiolitis

Ratings regarding respiratory disabilities are evaluated under 38 C.F.R. § 4.97. As the rating schedule does specifically include a rating for constructive bronchiolitis, the Veteran has been assigned an analogous rating under DC 6600 for chronic bronchitis, as the functions affected, anatomical localization, and symptoms are related. Chronic bronchitis is evaluated on the basis of findings from a pulmonary function test (PFT), in particular, Forced Expiratory Volume in one second (“FEV-1”); Forced Expiratory Volume in one second/Forced Vital Capacity (“FEV-1/FVC”); and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)). See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996). 

A rating under DC 6600 is assigned when the evidence demonstrates:

•	FEV-1 of 71- to 80-percent predicted; or FEV-1/FVC of 71 to 80 percent; or DLCO (SB) 66- to 80-percent predicted. (10 percent rating).

•	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. (30 percent 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). (60 percent rating).

•	FEV-1 less than 40 percent of predicted value, or; the ratio of FEV-1/FVC less than 40 percent; or DLCO (SB) less than 40-percent predicted; or maximum exercise capacity 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
 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). (60 percent rating).

•	FEV-1 less than 40 percent of predicted value, or; the ratio of FEV-1/FVC less than 40 percent; or DLCO (SB) less than 40-percent predicted; or maximum exercise capacity 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. (100 percent rating). 38 C.F.R. § 4.97, DC 6600.

The Board has reviewed the evidence of record and finds that a rating of 60 percent, but no higher, is warranted for the Veteran’s constructive bronchiolitis.  

First, the Veteran provided credible testimony at the hearing before the Board in November 2020. The Veteran asserted that her diagnosis of constructive bronchiolitis is very different than the analogous rating assigned for the disability of chronic bronchitis. The Veteran asserted that chronic bronchitis generally affects the upper airways and constructive bronchiolitis affects the small airways. Further, the Veteran asserted that constructive bronchiolitis is an interstitial lung disease that there is no cure for until the end-stages when only oxygen therapy or a lung transplant are the available courses of treatment. Additionally, the Veteran asserted that her constructive bronchiolitis has caused her lower airways to be scarred shut and her symptoms include shortness of breath, a chronic deep and dry cough, dizziness, and cardiorespiratory limitations. The Veteran also stated that her disability causes significant limitations at work as she must wear a certain type of mask that exacerbates her symptoms and she cannot stay with her patients for very long. Lastly, the Veteran specifically requested that a 60 percent disability rating be assigned for her constructive bronchiolitis. 

Next, in November 2020, the Veteran submitted a statement from her private physician regarding her constructive bronchiolitis. The physician stated that there is presently no clear way to gauge disease severity unless it were to progress to end-stages, such FEV-1 or DLCO so advanced as to require supplemental oxygen support and/or evaluation for lung transplantation. The physician also stated that constructive bronchiolitis is an obliterative process of the small airways that is a very distinct process from chronic bronchitis, which is a disability marked by overproduction of mucus and progressive airflow obstruction due to this overproduction. The physician noted that the Veteran's symptoms include a frequent and dry cough on exertion not relieved by medication; sensation of rales; demonstrated air trapping on PFTs and CT scan; reduction in gas exchange with diffusion noted on PFTs; and cardiorespiratory limitations demonstrated on cardiopulmonary testing. The physician noted that numerous medication trials, including steroids, have been unsuccessful. The physician stated that the Veteran's current course of treatment is reintroducing a previous medication trial and that future treatment may include new immunosuppressive medications or a lung transplant. 

Additionally, in January 2018 the Veteran submitted two additional statements from other private physicians. In a statement dated September 12, 2017, one of the Veteran’s private physicians stated that her constructive bronchiolitis causes severe limitations in functional capacity. The physician stated that the Veteran is not presently totally disabled by her disability but that she almost requires oxygen therapy and will likely require it in one to three years. Further, in a statement dated September 6, 2017, one of the Veteran's private physicians stated that constructive bronchiolitis is a separate clinical entity that should not be confused with chronic bronchitis and that there is presently no effective treatment for constructive bronchiolitis. The physician also stated that the Veteran’s constructive bronchiolitis causes significant pulmonary impairment. 

Next, in May 2015 and July 2019, the Veteran underwent in-person VA examinations with claims file review regarding constructive bronchiolitis. In both examinations the Veteran was diagnosed as having constructive bronchiolitis. In the May 2015 VA examination, the examiner indicated that PFT results showed pre-bronchodilator results of FEV-1 of 96 percent predicted and FEV-1/FVC of 104 percent. The examiner also indicated post-bronchodilator results of FEV-1 at 100 percent predicted and FEV-1/FVC at 101 percent. The examiner noted that the Veteran’s DLCO results showed 86 percent. In the July 2019 VA examination, the examiner indicated
 2015 and July 2019, the Veteran underwent in-person VA examinations with claims file review regarding constructive bronchiolitis. In both examinations the Veteran was diagnosed as having constructive bronchiolitis. In the May 2015 VA examination, the examiner indicated that PFT results showed pre-bronchodilator results of FEV-1 of 96 percent predicted and FEV-1/FVC of 104 percent. The examiner also indicated post-bronchodilator results of FEV-1 at 100 percent predicted and FEV-1/FVC at 101 percent. The examiner noted that the Veteran’s DLCO results showed 86 percent. In the July 2019 VA examination, the examiner indicated that PFT results showed pre-bronchodilator results of FEV-1 of 75 percent predicted and FEV-1/FVC of 78 percent. The examiner noted post-bronchodilator results were not indicated and that the Veteran’s DLCO results showed 65 percent. Both examiners stated that DLCO findings best reflected the level of the disability. In both examinations, the Veteran was found not to require oxygen therapy and no findings regarding whether the Veteran has cardiorespiratory limitations were made.

The Board finds that the probative medical evidence of record demonstrates that a rating of 60 percent, but no higher, for the Veteran’s constructive bronchiolitis is warranted. As noted above, the Veteran's constructive bronchiolitis is rated analogously as chronic bronchitis, and when rating analogously the Board may liberally apply the rating criteria if the evidence more closely approximates a rating of greater severity despite not strictly meeting the rating criteria. See Stankevich v. Nicholson, 19 Vet. App. 470, 472-73 (2006). 

First, the Board has considered the Veteran’s lay statements regarding the distinctions between constructive bronchiolitis and chronic bronchitis. In this case, while the Veteran is competent to discuss her symptoms as well as the nature of some disabilities given her medical training, she is not competent to provide a rating assessment regarding the severity of a respiratory disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Nonetheless, the Veteran's description of her disability is well supported by the medical evidence provided by her private physicians. Second, the Veteran’s private physicians agree that constructive bronchiolitis is a relatively new clinical entity that has a very distinct process from chronic bronchitis. Further, in the November 2020 statement from one of the Veteran’s private physicians, the physician stated that constructive bronchiolitis is an obliterative process and that presently there is not a clear way to gauge the severity of constructive bronchiolitis until it reaches end-stages. Although the physicians agree that the Veteran is not yet totally disabled, the physicians also state that the Veteran’s constructive bronchiolitis causes significant or severe impaired function and that eventually she will require oxygen therapy and evaluation for lung transplantation. The Board finds that the private physicians’ characterization of the Veteran’s disability level as significant or severe but not yet rising to the level of total disability is most approximately contemplated by the 60 percent rating criteria. Third, in the November 2020 statement, the Veteran’s private physician found that the Veteran's constructive bronchiolitis causes cardiorespiratory limitations, which is specifically contemplated by the 60 percent rating criteria. Fourth, given the private physicians’ statements indicating that presently there is no clear way to gauge the Veteran’s current level of disability through diagnostic testing, including PFTs, the Board finds that a rating assignment based strictly on the findings of the PFTs performed during the May 2015 and July 2019 VA examinations without considering the Veteran’s full disability picture would not be appropriate. Therefore, the Board finds that a rating of 60 percent, but no higher, is warranted.

Lastly, as the Veteran testified during the November 2020 hearing before the Board that her appeal of the issue would be satisfied by the 60 percent rating, the Board need not consider a higher percentage. AB v. Brown, 6 Vet. App. 35 (1993).

Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that the requirements for establishing a rating of 60 percent, but no higher, for constructive bronchiolitis have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is granted.

 

 

JAMES L. MARCH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Page-Nelson, 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