Citation Nr: 1140015 Decision Date: 10/27/11 Archive Date: 11/07/11 DOCKET NO. 07-08 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a compensable rating for residuals of a middle lobectomy prior to January 20, 2011. 2. Entitlement to a rating in excess of 10 percent disabling for residuals of a middle lobectomy as of January 20, 2011. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran had active service from November 1984 to June 1989 with 15 years, 10 months and 14 days prior active service, including service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection with a noncompensable rating for residuals of a middle lobectomy. The appeal was remanded by the Board in November 2010 for further development. Such has been completed and this matter is returned to the Board for further consideration. By way of an August 2011 rating action, the RO awarded a 10 percent rating for residuals of a middle lobectomy, effective from January 20, 2011. Informal claims for service connection for diabetes mellitus, hearing loss, hypertension and plantar fascitiis have been raised by the record via an October 2011 brief, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. For the period from the pendency of this claim to January 20, 2011, the veteran's residuals of a middle lobectomy were manifested by pulmonary function test (PFT results) that exceeded Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent predicted, exceeded Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, and exceeded Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted. 2. For the period since January 20, 2011, the veteran's residuals of a middle lobectomy are manifested by PFT results that are all within the ranges of FEV-1 of 71 to 80 percent predicted, FEV-1/FVC of 71 to 80 percent, and DLCO (SB) of 66 to 80 percent predicted. 3. The Veteran's residual scarring from the lobectomy is superficial, without evidence of tenderness or pain, and does not result in any restricted motion, nor does it exceed 6 square inches. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for residuals of a middle lobectomy prior to January 20, 2011, have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 4.96 , 4.97, § 4.118, Diagnostic Code 6844 (pre and post 2006), Diagnostic Codes 7801-7805 (2011). 2. The criteria for to a rating in excess of 10 percent disabling for residuals of a middle lobectomy have not been during the period since January 20, 2011. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 4.96 , 4.97, § 4.118, Diagnostic Code 6844 (pre and post 2006), Diagnostic Codes 7801-7805 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to notify and assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. See 73 FR 23353 (Apr. 30, 2008). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran filed his claim on appeal in February 2005. Prior to issuing the rating in October 2005, the RO issued a duty to assist letter in April 2005 addressing entitlement to an increased rating for residuals of his lobectomy. This letter provided initial notice of the provisions of the duty to assist as pertaining to entitlement for increased ratings, which included notice of the requirements to prevail on these types of claims, of his and VA's respective duties. The duty to assist letter notified the Veteran that VA would obtain all relevant evidence in the custody of a federal department or agency. He was advised that it was his responsibility to either send medical treatment records from his private physician regarding treatment, or to provide a properly executed release so that VA could request the records for him. The Veteran was also asked to advise VA if there were any other information or evidence he considered relevant so that VA could help by getting that evidence. Additional notice was sent in October 2006, and November 2010. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. This notice was provided in the October 2006 letter. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). Service treatment records were previously obtained and associated with the claims folder. VA and private medical records were obtained. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA provided the Veteran with examination in January 2011, with additional testing and addenda in March 2011 and July 2011. These examinations/tests addressed the claimed disorder, and included review of the claims folder and examination of the Veteran. In summary, the duties imposed by 38 U.S.C.A. §§ 5103 and 5103A have been considered and satisfied. Through notices from the RO, the claimant has been notified and made aware of the evidence needed to substantiate his claim for higher disability ratings, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided the Veteran. There is no indication that there is additional existing evidence to obtain or other development that could bring about more evidence to be considered in connection with the issues decided in this decision. Any error in the sequence of events or content of the notice is not shown to prejudice the claimant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter being decided at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that "staged ratings" or separate ratings for separate periods of time may be assigned based on the facts found following the initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). A decision of the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. During the pendency of this appeal, the regulations pertaining to the evaluation of respiratory conditions were amended, effective October 6, 2006. See 71 Fed. Reg. 52457 - 52460 (2006) (presently codified at 38 C.F.R. § 4.96 (2011)). When amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded. 38 U.S.C.A. § 5110(g) ; DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000. Therefore, as each set of amendments discussed above has a specified effective date without provision for retroactive application, neither set of amendments may be applied prior to its effective date. As of those effective dates, the Board must apply whichever version of the rating criteria is more favorable to the veteran. The Board notes, however, that the change in the regulations does not alter any of the specific criteria listed in the applicable Rating Formula. Rather, the new regulations affect how the evaluation criteria are applied, including when a pulmonary function test (PFT) is required to evaluate the disability, when to apply pre-bronchodilator values for rating purposes, and which PFT result to use (FEV-1 versus FEV-1/FVC versus DLCO (SB)) when the level of evaluation would differ depending on the test used. What remains unchanged in the application of the PFT is the following. The post-bronchodilator findings for these PFTs are the standard in pulmonary assessment. See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996) (VA assesses pulmonary function after bronchodilation). However, if the post-bronchodilator results are poorer than the pre-bronchodilator results, then the pre-bronchodilator results are used for rating purposes. See 38 C.F.R. § 4.96(d)(5) (in effect prior to October 6, 2006) and 38 C.F.R. § 4.96(d)(5) (2011). The Veteran's post lobectomy residual is currently evaluated under the Diagnostic Code 6844. Diagnostic Codes 6840 through 6845 are rated either under the General Rating Formula for Restrictive Lung Disease, or the primary disorder is rated. The restrictive lung diseases include Diagnostic Code 6844 (post-surgical residual, e.g., lobectomy, pneumonectomy). The General Rating Formula for Restrictive Lung Disease (Diagnostic Codes 6840 through 6845) provides that FEV-1 of 71- to 80-percent predicted value, or; the ratio of FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) is 66- to 80-percent predicted, is rated 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, is rated 30 percent disabling. 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 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. Notes to the General Rating Formula for Restrictive Lung Disease provide further rating guidance. Note (1) provides that a 100-percent rating shall be assigned for pleurisy with emphysema, with or without pleurocutaneous fistula, until resolved. Note (2) provides that, following episodes of total spontaneous pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall continue for three months from the first day of the month after hospital discharge. Note (3) provides that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion shall be rated at least 20-percent disabling. Disabling injuries of shoulder girdle muscles (Groups I to IV) shall be separately rated and combined with ratings for respiratory involvement. Involvement of Muscle Group XXI (Diagnostic Code 5321), however, will not be separately rated. 38 C.F.R. § 4.97. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. In this matter, as there has been a resection of the right 5th rib shown by history, the Board shall also consider the possibility of affording a higher rating under Diagnostic Code 5297, removal of ribs. Under this Diagnostic Code, removal of one rib or resection of two or more ribs without regeneration warrants a 10 percent disability rating. A 20 percent rating requires removal of two ribs. Removal of three or four ribs warrants a 30 percent rating. A 40 percent rating is assigned for removal of five or six ribs. Removal of more than six ribs warrants a 50 percent rating. 38 C.F.R. § 4.71a , Diagnostic Code 5297 (2011). The rating for rib resection or removal is not to be applied with ratings for purulent pleurisy, lobectomy, pneumonectomy or injuries of pleural cavity. 38 C.F.R. § 4.71a , Diagnostic Code 5297, Note 1. However, rib resection will be considered as rib removal in thoracoplasty performed for collapse therapy or to accomplish obliteration of space and will be combined with the rating for lung collapse, or with the rating for lobectomy, pneumonectomy or the graduated ratings for pulmonary tuberculosis. 38 C.F.R. § 4.71a , Diagnostic Code 5297, Note 2. When the Rating Schedule does not provide a 0 percent evaluation for a Diagnostic Code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); 38 C.F.R. §§ 3.102, 4.3 (2011). By way of history, the Veteran underwent a right middle lobectomy for an arteriovenous malformation while in service in December 1986. The symptoms leading to this surgery were coughing up blood for several days prior to admission, with bronchoscope showing a small right middle lobe lesion consistent with adenoma. This surgery included resection of his right 5th rib consistent with thoracotomy. By the time he underwent a VA examination for this condition in December 1989, the X-ray from that time indicated that the resected right 5th rib was regenerating. Service connection was granted for residuals of a right lobectomy in June 1990, with an initial noncompensable rating initially assigned. The Veteran filed his claim for an increased rating in February 2005. The evidence pertinent to this claims is as follows. The report of an April 2005 VA general examination included a pulmonary examination with the Veteran giving a history of thoractomy in December 1986. He indicated that in 1968 he first had hemoptysis and would have an episode of coughing blood about every 10 years from that initial time. He had no history of unexplained weight loss, fevers or lympadenopathy. He had occasional night sweat but it was not associated with excess temperatures. He had no history of treatment for TB. He currently used Vicks sinus nose spray. There was no history of oxygen therapy or nebulizer treatment. Examination revealed his chest had equal expansion with bilateral rhonchi. There were no rales or wheezes. His pulse was 76 beats per minute with regular rhythm and respirations were 18 and unlabored. He had a 12 inch curvilinear scar over the right lateral chest wall which was well healed and nontender. He also had 2 one inch horizontal scars consistent with previous chest tubes, also non tender to palpation. Pulmonary function testing (PFT) showed his FEV-1 was 76 percent pre bronchodilator and 83 percent post bronchodilator. FEV-1/FVC was 108 percent pre bronchodilator and 106 percent post bronchodilator. Chest X-ray showed status post partial right pneumonectomy with prominent right hilum. Further evaluation with CT thorax was recommended if no comparison CT's were available. The diagnosis was status post right middle lobe thoractomy for recurrent hemoptysis, the last episode being in December 1986. Currently the Veteran was on no medications and tolerating activities of daily living and work without difficulty. The report of an October 2006 VA pulmonary examination noted that there was no change since the last VA examination. There was no shortness of breath, wheezing, coughing or hemoptysis. He also had no prescription or inhalers and there was no chest pain. He worked full time as a dispatcher. He said that he applied for an increased rating on the basis of having had his rib taken out during the resection surgery. He denied any pain associated with this. Examination revealed his lung was clear to auscultation, with no wheezing or cough. He had a 38 centimeter by 1.5 centimeter curvilinear scar in the right lower axillary region. He was diagnosed with a right lobe lobectomy, currently asymptomatic. PFT showed his FEV-1 was 80 percent pre bronchodilator and 82 percent post bronchodilator. FEV-1/FVC was 105 percent pre bronchodilator and 109 percent post bronchodilator. DLCO was 88 percent. The findings were interpreted as a mild restriction likely secondary to obesity, however clinical correlation was required. He had normal bronchodilator response, normal diffusion and air trapping. An October 2006 chest X-ray revealed a stable chest without acute cardiopulmonary disease. His cardiomediastinal silhouette was stable in size and contour and pulmonary vasculature was normal. The staples and lung changes from the prior middle lobectomy were shown and calcified granulomas were again identified. However no pnuomothorax, pleural effusions or focal air space disease were shown. None of the medical records submitted during the pendency of this appeal contained any significant findings pertaining to any pulmonary problems, but rather focused on other medical problems unrelated to this matter. The report of a January 2011 VA examination noted current complaints of pain in the lower right anterior chest on heavy exertion. He had sinus congestion for the past 2-3 years. He denied current cough or sputum production. He had no hemoptysis since 1987. He had intentional diet related weight loss over the past 5 months from 242 to 192 pounds. He denied dyspnea at rest and was able to walk a casual pace without difficulty. He stated he could only jog very short distances. He felt he gets shortness of breath with heavy exertion quicker than other men his age. He generally did not engage in heavy exertion. He denied any current or previous episodes of wheezing. He was not currently on any prescription for pulmonary complaints. He had no incapacitating episodes from chest pain. He avoided vigorous exertion to avoid developing chest pain. Review of systems was positive for chronic sinus congestion. He had past episodes of hematuria years ago. There was right anterior rib pain over costal ribs. The remainder of review of systems was unremarkable. He currently worked as a bus driver. Examination revealed his chest was symmetric anteriorly and posteriorly with well healed thoractomy scar on right extending from mid scapula to the anterior axillary line overlying the 6th rib. The doctor did not feel any underlying abnormality and he had no point tenderness under the scar or anterior ribs. Palpation was normal and lungs were clear to auscultation anteriorly and posteriorly. Percussion was normal resonance in all fields anteriorly and posteriorly. Movement with inspiration was symmetric with normal expansion of his chest. He had thin A-P diameter but examination did not appreciate any pectus excavatum. The assessment was right anterior chest pain on heavy exertion and history of massive hemoptysis, status post right middle lobe resection in 1986. A March 2011 cardiopulmonary exercise test showed maximum V02 to be 178 lml/min (82 percent predicted. The indication for such test was dyspnea on exertion and chest pain with heavy exertion. The remote history of the hemoptysis and middle lobectomy was noted. PFT was noted to show FEV-1 of 88 percent predicted. The results of the exercise test revealed he was tested by bicycle ergometry and discontinued the exercise due to leg fatigue. His dyspnea rating was 7 (max 10) and fatigue rating was 9 (max 10). He was noted to have maximum heart rate of 139 beats per minute, over 85 percent predicted. His blood pressure response was elevated for his level of exercise, with peak exercise blood pressure of 210/76. EKG was without noted changes. The exercise test was interpreted as showing early exercise intolerance that is mild in severity. He achieved a cardiovascular limit to exercise and had a hypertensive response to exercise. There was no evidence of ischemia, deconditioning or intrinsic cardiac defect cannot be excluded. He was noted to have achieved a ventilator limit to exercise such that his ventilation was excessive for this level of exercise. There were no gas exchange abnormalities. The dead space response was normal, suggesting that this was not related to vascular disease. Chest X-rays also from March 2011 showed post surgical changes from prior right middle lobectomy with resultant elevation of the right hemi diagram. He had unchanged appearance of multiple calcified granulomas within the left lung. There was no evidence of focal air space disease, pneumothorax or pleural effusion. Osseous structures demonstrated prior resection of the posterior right 5th rib. The impression of the X-ray was unchanged post surgical chest consistent with prior partial resection of the right lung. There was no sign of active intrathoracic disease. PFT's done in March 2011, with addendum drafted in July 2011 showed FEV-1 was 88 percent predicted and FEV-1/FVC was 80 percent. The PFT was interpreted with spirometry suggesting restriction. In addition, on these same PFTs were actually done during a maximal cardiopulmonary exercise stress test for C02 maximum and he was noted to have an oxygen saturation of 100 percent both at rest and at peak exercise. He also had carbon dioxide ventilator capacities without evidence of a gas exchange abnormality. In other words, there was no indication of an abnormal DLCO, thus a formal DLCO was not done. However, as indicated, a variety of other measures were taken that indicated that there was no indication of a gas diffusion abnormality which is what you measure when you measure a DLCO. Based on a review of the evidence, the Board finds that the preponderance of the evidence is against a compensable rating prior to January 20, 2011, and against a rating in excess of 10 percent disabling as of this date. The evidence from the available findings on PFT in the April 2005 VA examination shows that his FEV-1 was 83 percent post bronchodilator. His FEV-1/FVC was 108 percent pre bronchodilator (which was better than the 106 percent post bronchodilator findings and thus must be used instead). The evidence from the available findings on PFT in the October 2006 VA examination shows that his FEV-1 was 82 percent post bronchodilator. FEV-1/FVC was 109 percent post bronchodilator. DLCO was 88 percent. These findings are all within a noncompensable range, as they do not meet the criteria for a 10 percent rating for PFT findings under Diagnostic Code 6844. See 38 C.F.R. § 4.31. There also was no evidence of any active cardiopulmonary disease as noted in the X-ray from October 2006, thus, no cardiac manifestations are shown that would be suggestive of a compensable rating under this Diagnostic Code. The Board shall now consider whether a compensable rating prior to January 20, 2011 is warranted under the criteria for rib resection, Diagnostic Code, Diagnostic Code 5297. The Board notes that because the evidence fails to show that the rib resection was performed to treat a collapsed lung or to accomplish obliteration of space, Diagnostic Code 5297 may not be used to evaluate the rib resection in combination with the rating for the lobectomy. However it could be used as an alternate rating, should the evidence warrant a higher rating for a missing rib than that currently assigned for the lobectomy under Diagnostic Code 6844. A review of the evidence reveals that there is no basis for granting a compensable rating alternately under the criteria for rib resection, Diagnostic Code, Diagnostic Code 5297, as the evidence prior to January 20, 2011 suggests that the rib was regenerating as early as 1989, and there is no evidence that directly contradicts this X-ray finding. The Veteran was noted to have no specific complaints of pain associated with the resection, and was deemed asymptomatic in the October 2006 VA pulmonary examination. Thus an alternate 10 percent rating is not shown under this criteria prior to January 20, 2011. Likewise there is no basis for consideration of an alternate compensable rating under Diagnostic Code 5321 for involvement of Muscle Group XXI, (which cannot be separately rated pursuant to Note 3 of the General Rating Formula). Nor is a separate rating warranted for any other muscle group for that matter, as there is no evidence of any muscle involvement in any of the evidence prior to January 20, 2011. Again, the Veteran's residuals were deemed asymptomatic in the October 2006 VA pulmonary examination. As for the rating in effect as of January 20, 2011, the Board finds that the preponderance of the evidence is against a rating in excess of the 10 percent rating for the lobectomy residuals. His PFT's clearly fall within the criteria for a 10 percent rating as they are shown to reveal a FEV-1 of 88 percent predicted and FEV-1/FVC of 80 percent. DLCO, while not formally taken, was deemed to be within normal limits, based on the cardiopulmonary exercise test interpretations. The cardiopulmonary findings, including chest X-ray likewise were negative for any cardiac manifestations that could potentially suggest a higher rating under the General Rating Formula. As with the evidence prior to January 20, 2011, the evidence of that date fails to show that alternate ratings in excess of 10 percent disabling are warranted based on the Diagnostic Code 5291 for rib removal or 5231 for muscle injury. The examination of January 2011 was completely negative for any underlying abnormality and he had no point tenderness under the scar or anterior ribs. Palpation was normal and lungs were clear to auscultation anteriorly and posteriorly. Percussion was normal resonance in all fields anteriorly and posteriorly. Movement with inspiration was symmetric with normal expansion of his chest. Thus there is no basis for a rating in excess of 10 percent based on any applicable Diagnostic Code for the lobectomy as of January 20, 2011. Thus the preponderance of the evidence is against a compensable rating prior to January 20, 2011 and against a rating in excess of 10 percent disabling as of that date for the residuals of lobectomy. The Board has also considered whether a separate compensable rating is warranted for the residual surgical scar of the lobectomy dating from the pendency of this appeal. See 38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect prior to October 28, 2008). The Board notes that the rating criteria for evaluating skin disabilities, including scars, were revised effective October 23, 2008. See 73 Fed Reg. 54710 (Oct. 23, 2008). The revised rating criteria are not applicable to claims pending on or before October 23, 2008, however. Prior to October 23, 2008, Diagnostic Code 7805 provides that other scars will be rated based on the limitation of function of the affected part. See 38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect prior to October 28, 2008). Other potentially applicable Diagnostic Codes for scars shall also be considered by the Board. Diagnostic Code 7801 provides a 10 percent rating for other scars that are deep or cause limited motion in an area or areas exceeding 6 square inches (39 square centimeters). Diagnostic Code 7802 provides a 10 percent rating for other scars that are superficial and do not cause limited motion in an area or areas of 144 square inches (929 square centimeters) or greater. Diagnostic Code 7803 provides a 10 percent rating for scars that are superficial and unstable. Note (1) to Diagnostic Code 7803 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) to Diagnostic Code 7803 defines a superficial scar as one not associated with underlying tissue damage. Diagnostic Code 7804 provides a 10 percent rating for a superficial scar that is painful on examination. Note (1) to Diagnostic Code 7804 again defines a superficial scar as one not associated with underlying tissue damage. See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, & 7804 (in effect prior to October 28, 2008). Examination of the scar in January 2011 revealed no associated limitation of function (in this case motion loss) from the scar. Likewise the earlier examinations from April 2005 and October 2006 also showed no limited motion or other functional impairment from the scar. None of the other pertinent medical evidence suggests any functional loss from the scarring. Consequently, there is no basis for rating under Code 7805. Additionally, the scarring is shown to be superficial, and there were no complaints shown on examination, or elsewhere during the pendency of this claim, of the scar being tender or painful. The areas affected by the scarring are not shown to exceed six square inches (39 square centimeters). There is also no evidence showing that the scarring is unstable. The evidence was negative for any sign of ulceration, breakdown or soft tissue damage. Thus, for these reasons, a compensable rating is not warranted under any of the other pertinent criteria for scars. See Diagnostic Codes 7801-7804. Consideration for a staged rating pursuant to Hart, supra is not warranted in this matter, where the evidence throughout the pendency of this claim reflects noncompensable findings for rating the scar. In sum, the Board finds that the preponderance of the evidence is against a separate compensable rating for scarring at the surgical location of this lobectomy. In conclusion, the Board finds that a compensable rating for residuals of a middle lobectomy prior to January 20, 2011 is not warranted, and that a rating in excess of 10 percent is not warranted for the period from January 20, 2011. Extraschedular Consideration The RO determined that referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for an extraschedular rating was not warranted. Under 38 C.F.R § 3.321(b)(1), in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities is made. The governing norm in an exceptional case is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with the Veteran's employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R § 3.321(b)(1) (2010). In this case, the Rating Schedule is adequate for evaluating the Veteran's lobectomy residuals. He is not shown to have been hospitalized frequently this condition. With regard to the impact on the Veteran's ability to work, he is shown by the record to be working full time as a bus driver, without loss of time from work shown due to his lobectomy residuals. Thus, the disability due to the Veteran's service-connected lobectomy residuals is shown to be adequately compensated by the assigned schedular ratings discussed above. These schedular ratings contemplate the impact of his disability, with residual effects on pulmonary function, on occupational function. Higher schedular ratings are available for more severe symptoms. There is no indication in the record that the Veteran's disabilities are so unusual or extensive that they make the schedular criteria inapplicable. Accordingly, referral for extraschedular consideration is not warranted at this time. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In the absence of evidence of such factors, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a compensable rating for residuals of a middle lobectomy prior to January 20, 2011 is denied. Entitlement to a rating in excess of 10 percent disabling for residuals of a middle lobectomy as of January 20, 2011 is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs