Citation Nr: 1126015 Decision Date: 07/11/11 Archive Date: 07/19/11 DOCKET NO. 06-12 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. What initial evaluation is warranted for diffuse fibrocalcific lung disease with pleural apical thickening (hereinafter a "lung disability") for the period October 25, 2002 to September 30, 2009? 2. What initial evaluation is warranted for diffuse fibrocalcific lung disease with pleural apical thickening for the period since October 1, 2009? REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active duty from December 1952 to October 1956. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which-in pertinent part, granted entitlement to service connection for diffuse fibrocalcific lung disease with pleural apical thickening and assigned an initial rating of 30 percent, effective October 2002. The Veteran appealed the initial rating. The case was certified to the Board by the Louisville, Kentucky, RO. As the Veteran perfected an appeal of the initial rating assigned following the grant of service connection for his lung disability, the Board characterized the issue on appeal in accordance with the decision in Fenderson v. West, 12 Vet. App. 119 (1999) (appeals from original awards are not increased rating claims), that requires consideration of the evidence since the effective date of the grant of compensation. In June 2010, the Board remanded the case to the RO, via the AMC, in Washington, DC, for additional development. The AMC/RO completed only part of the additional development as directed, continued to deny the claim for a higher initial rating, and returned the case to the Board for further appellate review. The question what initial evaluation is warranted for diffuse fibrocalcific lung disease with pleural apical thickening for the period since October 1, 2009, is addressed in the REMAND portion of the document below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The issue of entitlement to a total disability evaluation on the basis of individual unemployability due to service-connected disabilities has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The AMC/RO's failure to complete the additional development as instructed does not impact the rating period prior to October 1, 2009. 2. For the period October 25, 2002, to September 30, 2009, the Veteran's diffuse fibrocalcific lung disease with pleural apical thickening was not manifested by a forced expiratory volume at one second of 40 to 55 percent predicted, or; by a forced expiratory volume at one second/forced vital capacity ratio of 40 to 55 percent predicted; or by a diffusion capacity of the lung for carbon monoxide by single breath method of 40 to 55 percent predicted; or by a maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). CONCLUSION OF LAW The requirements for an initial evaluation higher than 30 percent for diffuse fibrocalcific lung disease with pleural apical thickening for the period October 25, 2002, to September 30, 2009, were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.20, 4.96, Diagnostic Code 6603 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2010); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2010); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2010). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58. In Fenderson, 12 Vet. App. 119, however, it was held that the rule from Francisco does not apply where an appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the Veteran's lung disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings. Fenderson, 12 Vet. App. At 126. Analysis The Veteran's diffuse fibrocalcific lung disease with pleural apical thickening is not listed in the rating criteria. Where the particular disability for which a veteran has been service connected is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. See 38 C.F.R. §§ 4.20, 4.27 (2010). The RO rated the Veteran's disability as analogous to emphysema and assigned an initial 30 percent rating. 38 C.F.R. § 4.96, Diagnostic Code 6603. VA amended the rating schedule concerning respiratory conditions, effective October 6, 2006. VA added provisions that clarify the use of pulmonary function tests in evaluating respiratory conditions. A new paragraph (d) to 38 C.F.R. § 4.96, titled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845" has seven provisions relating to the use of pulmonary function tests. A review of the regulatory changes which affect the current claim, reveals that all regulatory changes pertinent to this claim were not substantive in nature, and merely interpret already existing law. 38 C.F.R. § 4.96. As a result, the fact the Veteran's claim was pending at the time of the changes in the criteria does not impact his appeal of this decision. Under the applicable rating criteria, when forced expiratory volume at one second is 56 to 70 percent predicted, or when the ration of forced expiratory volume at one second to forced vital capacity is 56 to 70 percent, or when a diffusion capacity of the lung for carbon monoxide by single breath method is 56 to 65 percent predicted a 30 percent rating is assigned. A 60 percent evaluation is assigned when forced expiratory volume at one second is 40 to 55 percent predicted, or; when forced expiratory volume at one second/forced vital capacity ratio is 40 to 55 percent predicted, or; when a diffusion capacity of the lung for carbon monoxide by single breath method of 40 to 55 percent predicted, or when there is maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). 38 C.F.R. § 4.96. The September 2003 VA examination report notes that the examiner conducted a comprehensive review of the claims file and opined the Veteran's lung pathology was causally related to findings on x-rays taken during his active service. At the examination the Veteran denied a history of fever, night sweats, weight loss, or coughing. He did report always having a slight nonproductive cough. The Veteran indicated that he had gained about seven pounds during the summer, as he always did, as he usually felt better during the summer and ate more. The Veteran denied a history of hemoptysis or treatment with anticoagulants, continuous positive airway pressure, or tracheostomy oxygen. The Veteran reported recently following an antibiotic regimen for pneumonia. The examiner noted the Veteran had an extensive smoking history that started at eight years of age. Physical examination revealed no evidence of pulmonary hypertension, right ventricle hypertrophy, cor pulmonale (right heart failure), or congestive heart failure. There was no jugular venous distention at 30 degrees. The Veteran reported that he slept on one small pillow. He denied nocturnal orthopnea, as well as a history of pulmonary embolism, pulmonary thromboembolism, and ankylosing spondylitis. No carotid bruits were noted. The Veteran's ears, nose, mouth, and throat were clear. July 2003 chest x-rays showed a normal heart size. No acute pulmonary infiltrate was visible. There was no evidence of vascular congestion or pleural effusion. No mass lesions were identified. Pulmonary function tests revealed the following results: pre-bronchodilator: forced expiratory volume at one second , 69.4 percent, and forced expiratory volume at one second/forced vital capacity, 68 percent; post-bronchodilator: forced expiratory volume at one second , 74.5 percent, and forced expiratory volume at one second/forced vital capacity, 74 percent. His diffusion capacity of the lung for carbon monoxide by single breath method was 62.8 percent. The examiner diagnosed moderate obstructive pulmonary disease with an extensive smoking history; and, symptoms compatible with allergic rhinitis with nasal stuffiness around certain pollens. The examiner noted that pulmonary function tests showed moderate obstruction without a significant response to bronchodilator. Lung volumes were normal, and there was a slightly reduced diffusing capacity. An echocardiogram showed a normal ejection fraction, and electrocardiograms were normal. The September 2003 pulmonary function test results showed the Veteran's results as significantly better than those of forced expiratory volume at one second , forced expiratory volume at one second/forced vital capacity, or diffusion capacity of the lung for carbon monoxide by single breath method of 55 percent, which is necessary to warrant a 60 percent rating. 38 C.F.R. § 4.97, Diagnostic Code 6603. Thus, the preponderance of the evidence shows the Veteran's lung disability to have most nearly approximated the assigned 30 percent rating as of the September 2003 examination. 38 C.F.R. § 4.7. VA outpatient records show the Veteran's respiratory symptoms remained consistent with the 2003 findings up through 2009. These records reflect that the Veteran's lung disability was not the subject of his various complaints. Thus, the Board finds the Veteran's lung disability most nearly approximated the assigned 30 percent rating for the period of October 25, 2002, to September 30, 2009. 38 C.F.R. §§ 4.1, 4.7, 4.20, 4.97, Diagnostic Code 6603. There is no factual basis for a staged rating for any portion of that period. The Board notes the Veteran's claim for individual unemployability but also notes he has been retired for several years. Age is not a valid consideration in a claim of entitlement to a total disability evaluation on the basis of individual unemployability. Moreover, an assessment of the propriety of a referral for extraschedular consideration is based on exceptional impact of disability on a claimant's employment. See 38 C.F.R. § 3.321(b)(1). Further, the Board finds the rating criteria adequately describe the symptoms and severity of the Veteran's lung disability, which means the Veteran's lung disability picture is not exceptional. See id. Thus, referral for extraschedular consideration is not indicated. Thun v. Peake, 22 Vet. App. 111 (2008). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an initial rating higher than 30 percent for diffuse fibrocalcific lung disease with pleural apical thickening for the period October 25, 2002, to September 30, 2009, is denied. REMAND In May 2009 the Board remanded the case for a VA examination. That examination was conducted in October 2009. The June 2010 Board remand, however, noted the examination report did not include the pulmonary function tests report and instructed the AMC/RO to obtain the test report, and to refer the claims file back to the examiner to determine if the results changed his diagnosis or opinion in any way. The examiner responded in the negative after another review of the file. The October 2009 pulmonary function test report obtained by the AMC/RO is not in a format that would enable a lay evaluator to rate the Veteran's lung disability under the rating schedule. This fact is compellingly demonstrated by the fact that the AMC/RO's February 2011 supplemental statement of the case does not even note the Veteran's forced expiratory volume at one second , forced expiratory volume at one second /forced vital capacity, or diffusion capacity of the lung for carbon monoxide by single breath method, values from the October 2009 pulmonary function tests. Hence, the AMC/RO did not comply with the June 2010 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board cannot discern any reason why the October 2009 pulmonary function tests report is not available in the same format as the September 2003 report. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The AMC/RO should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all health care providers, VA and non-VA, who treated him for his diffuse fibrocalcific lung disease with pleural apical thickening since October 2009. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. The AMC/RO shall obtain the October 2009 pulmonary function tests results, and ensure the report is in the identical format as the September 2003 pulmonary function tests report so the rating criteria can be properly applied. If the Veteran has undergone pulmonary function tests since October 2009, the AMC/RO shall ensure all relevant reports are in the same format as the September 2003 test report. 3. Thereafter, the AMC/RO must review the claims file and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. After the development requested has been completed, the AMC/RO shall review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 4. Then review the Veteran's claim de novo in light of the additional evidence obtained. If the claim is not granted to his satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs