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Court Wins

CCK Helps Veteran Secure Increased Rating for Respiratory Condition

Lisa Ioannilli

March 3, 2022

Updated: June 20, 2024


Case Summary

The Veteran served on active duty in the United States Army during the Korean Conflict Era from December 1952 to December 1954.

The Veteran initially filed a claim for U.S. Department of Veterans Affairs (VA) disability benefits in September 1964 for spontaneous bilateral pneumothorax.  At that time, VA assigned the respiratory condition a 10 percent rating.

The Veteran filed another claim for benefits on December 6, 2002, this time for additional conditions related to his military service and an increased rating for the bilateral pneumothorax.

In an April 2004 Rating Decision, VA increased the Veteran’s rating for spontaneous bilateral pneumothorax with left thoracotomy from 10 to 30 percent and granted additional disability benefits for a residual scar and post-surgical partial resection of the left sixth rib.  However, VA denied service connection for several other conditions, including bronchitis, obstructive pulmonary disease, coronary artery disease (CAD), and more.

Veteran Appeals to the Board of Veterans’ Appeals

The Veteran filed a Notice of Disagreement in early 2005, seeking an increased rating for his service-connected conditions as well as compensation for the disabilities VA previously denied.  In October 2006, VA denied the Veteran service connection for hearing loss and in March 2009, VA denied Total Disability based on Individual Unemployability, or TDIU.                                                                                                                                                                                                                                                                                                                                                            The case finally reached the Board of Veterans’ Appeals (Board) in September 2012.  The Board denied service connection for CAD, tinnitus, arthritis, and other conditions.  The Board remanded the issues of bilateral hearing loss, chronic bronchitis, chronic obstructive pulmonary disease (COPD), and TDIU.

The Board denied service connection for these disabilities in two more decisions (2013 and 2014) before Chisholm Chisholm & Kilpatrick LTD took on the Veteran’s case in 2014.  With the help of CCK, the Veteran filed a Joint Motion for Partial Remand in October 2014.

In a February 2015 decision, the Board remanded the issues of an increased rating for bilateral pneumothorax and TDIU for further development.

CCK Argues for an Increased Rating for Respiratory Disorders and TDIU

The case once again came before the Board on May 4, 2016, with CCK representing the Veteran.

CCK argued that the Veteran’s respiratory disorders (i.e., service-connected bilateral pneumothorax and non-service-connected COPD and chronic bronchitis) were significantly more disabling than currently evaluated.  CCK noted that a past pulmonary function test (PFT) of the veteran’s lung conditions matched a 60 percent evaluation and the most recent PFT met the criteria for a 100 percent rating.

CCK also argued that in an August 2015 VA exam, the examiner had noted that the impairment from the Veteran’s service-connected and non-service-connected respiratory conditions could not be differentiated without resorting to speculation.  Due to this, the Board resolved all doubt in the Veteran’s favor and considered the results of the PFT as related to his service-connected bilateral pneumothorax.

The Board awarded the Veteran disability compensation effective December 16, 2002, fluctuating between 60 and 100 percent, and remanded the issue of TDIU.

In August 2016, VA granted TDIU, also effective December 2002.

Spouse Secures DIC Following Veteran’s Death

The Veteran passed away on February 15, 2020 from cardiopulmonary arrest.  Since the Veteran was considered totally disabled from service-connected conditions since December 16, 2002, the criteria for Dependency and Indemnity Compensation (DIC) was met.

On April 6, 2020, VA granted his surviving spouse eligibility to DIC and Dependents’ Educational Assistance.

About the Author

Bio photo of Lisa Ioannilli

Lisa joined CCK in March 2012. Lisa is a Senior Attorney focusing on representing disabled veterans in claims pending before the U.S. Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Lisa