Citation Nr: 1304040 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 07-40 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for aspergillosis, status post partial lobectomy and thoracotomy, prior to August 10, 2009, and to a rating in excess of 30 percent from August 10, 2009, forward. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from August 1994 to April 1995 and from January 1997 to August 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2009, the Veteran testified before the undersigned at a Travel Board hearing. In March 2010, the case was remanded for further development. In a December 2011 rating decision, the RO increased the Veteran's rating for aspergillosis, status post partial lobectomy and thoracotomy, to 30 percent effective August 10, 2009. The Veteran has not affirmatively indicated that he is satisfied with the increase provided by this decision. Accordingly, the Board presumes he continues to seek the assignment of a higher rating. Thus, his claim for increase remains on appeal. A.B. v. Brown, 6 Vet. App. 35 (1993). FINDING OF FACT The Veteran's respiratory disability has resulted in diffusion capacity for carbon monoxide (DLCO) predominantly between 40 and 55 and forced expiratory volume after one second (FEV-1) predominantly between 40 and 55 after treatment with bronchodilator. FEV-1, the ratio of FEV-1/Forced Vital Capacity (FVC) and/or DLCO have not been predominantly less than 40-percent; maximum exercise capacity has not been less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); the Veteran has not been shown to require oxygen therapy; cor pulmonale, right ventricular hypertrophy, pulmonary hypertension and acute respiratory failure have not been shown; and chronic pulmonary mycosis with persistent fever, weight loss, night sweats or massive hemoptysis has not been shown. CONCLUSION OF LAW The criteria for a 60 percent rating, but no higher, for the Veteran's aspergillosis status post partial lobectomy and thoracotomy have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Codes 6838, 6844 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) includes enhanced duties to notify and assist claimants for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice 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. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. The Board notes that the instant claim for increase arose from the initial grant of service connection. For initial rating claims, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice. See Dingess/Hartman v. Nicholson, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, VCAA notice pertaining to the Veteran's appeal of the initial rating assigned for aspergillosis was not required. Regardless, in VCAA notice letters sent to the Veteran in April 2008, May 2008 and April 2010, the RO generally informed the Veteran of the evidence necessary to substantiate his claim and his and VA's responsibilities in claims development. Also, the Veteran was informed that in evaluating his disability, VA would consider evidence of the nature and symptoms of his condition; the severity and duration of his symptoms; and the impact of his condition and symptoms on employment. Additionally, he was notified of the general manner in which disability ratings are assigned, and examples of the types of evidence he could submit, or ask VA to obtain, were also provided. Although some of the notice was not provided until after the Veteran's claim was initially adjudicated, the claim was subsequently re-adjudicated in a December 2011 supplemental statement of the case, thereby correcting any defect in the timing of the notice. See, e.g., Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). No further corrective action is necessary. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the Veteran's claim. Pertinent medical evidence associated with the claims file consists of the service treatment records, VA treatment records, private treatment records and the reports of QTC and VA examinations. At his September 2010 VA examination, the Veteran indicated that he had received treatment for breathing problems from Dr. Hawkins several times during that year. However, in April 2010 the RO specifically asked the Veteran to complete a VA Form 4142 for any private doctors so that the RO could obtain his records. The Veteran did not submit a form for Dr. Hawkins; therefore, no further action is required in this regard. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Also of record and considered in connection with the appeal is the transcript of the August 2009 Board hearing, along with various written statements provided by the Veteran and by his representative on his behalf. The Board notes that no further RO action, prior to appellate consideration of the claim, is required. II. Increased Rating The Veteran was initially granted service connection for aspergillosis in the January 2006 rating decision and was assigned a noncompensable disability rating, effective August 11, 2005. As noted above, in the December 2011 rating decision, the RO increased the Veteran's rating for the respiratory disability to 30 percent effective August 10, 2009. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." However, as discussed below, because the level of impairment associated with the Veteran's respiratory disability has been relatively stable with regard to the rating criteria throughout the appeal period, the application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable in this case. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. A. History The service treatment records show that during an August 2004 physical, the Veteran complained of cough, productive of thick brown plugs. He was subsequently referred for a chest X-ray, which showed an abnormality within the right upper lobe. He received a CT scan, which showed nodular densities within the right upper lobe as well as mediastinal lymphadenopathy. He underwent a right thoracotomy and upper lobectomy in October 2004 and was subsequently found to have aspergillosis. During a December 2004 Medical Board evaluation, the Veteran complained of continued post thoracotomy pain and inability to take a deep breath secondary to pain. He also complained of shortness of breath. A March 2005 Medical Board evaluation report indicates that the Veteran's diagnosis was most consistent with allergic bronchopulmonary aspergillosis, which occasionally might present with noncaseating granulomas within the medial lymph nodes. It was thought that given his restrictive lung disease and multiple coomorbidities and current medical problems, further service in the military may have proved difficult. He was referred to the Physical Evaluation Board (PEB) for possible medical separation. In July 2005, the PEB found that the Veteran was 30 percent disabled due to brochopulmonary aspergillosis, status post right upper lobectomy. It was noted that he was rated for restrictive lung disease based on reduced lung capacity. Pulmonary function testing (PFTs) showed that FEV-1 was 57% improving to 70 % with a bronchodilator and FVC was 67 % but with normal diffusion capacity. During a July 2005 VA examination, it was noted that because of his allergic bronchopulmonary aspergillosis, the Veteran had had the right upper lobectomy in October 2004. He had recently had an elevated IGE of 494, indicating the possibility of recurrent aspergillosis. He had begun retreatment with Sporanox and Prednisone one week prior. Pulmonary function tests had demonstrated significant problems with ventilation. Forced vital capacity was measured at 27 % and FEV 25/75 was 42 %. With treatment with albuterol (a bronchodilator), however, the forced vital capacity was increased to 50 % and the FEV 25/75 was increased to 101 %. Physical examination showed that the chest was normal to inspection, palpation, percussion and auscultation. The diagnosis was allergic bronchopulmonary aspergillosis status post right upper pulmonary lobe removal with possible recurrent disease and significant functional impairment. Private medical records from 2005 to 2007 show that the Veteran was seen repeatedly for respiratory problems, including dyspnea. March 2006 private pulmonary function testing showed FEV-1 was 39 % pre-bronchodilator and 33 % post-bronchodilator. FVC was 37% pre-bronchodilator and 38% post-bronchodilator. FEV-1/FVC was 90% pre-bronchodilator and 75% post-bronchodilator. May 2006 private pre-bronchodilator PFTs showed that FEV-1 was 57 %. FVC was 51% and FEV-1/FVC was 112%. Later May 2006 private PFTs showed FEV-1 was 24 % pre-bronchodilator and 34 % post-bronchodilator. FVC was 30% pre-bronchodilator and 35% post-bronchodilator. FEV-1/FVC was 66% pre-bronchodilator and 82 % post-bronchodilator. Subsequent May 2006 private pre-bronchodilator PFTs showed FEV-1 was 37 %. FVC was 38 % and FEV-1/FVC was 101%. In a May 2006 letter, a private pulmonologist noted that since the lobectomy in October 2004, the Veteran had been treated with prednisone, Advair and albuterol without significant relief. He had a cough productive of thick brown phlegm without hemoptysis. He had dyspnea at rest as well as on exertion and also had occasional chest tightness. He denied constitutional complaints but did have a 25 pound weight gain associated with prednisone use. On examination, pulmonary function tests showed severe restriction predominantly on a neuromuscular basis. In conclusion, the pulmonologist found that the Veteran had severe restrictive lung disease without obvious parenchymal lung disease based on a CT scan of the chest done in April 2006. July 2006 private PFT testing showed FEV-1 was 44 % pre-bronchodilator and 36% post-bronchodilator. FVC was 39% pre-bronchodilator and 36 % post-bronchodilator. FEV-1/FVC was 94% pre-bronchodilator and 84 % post-bronchodilator. October 2006 private PFTs showed FEV-1 was 33 % pre-bronchodilator and 45 % post-bronchodilator. FVC was 36% pre-bronchodilator and 41% post-bronchodilator. FEV-1/FVC was 75% pre-bronchodilator and 91% post-bronchodilator. Diffusion capacity (DLCO) was 47%. December 2006 private PFTs showed FEV-1 was 31 % pre-bronchodilator and 28% post-bronchodilator. FVC was 27% pre-bronchodilator and 30% post-bronchodilator. FEV-1/FVC was 93% pre-bronchodilator and 78% post-bronchodilator. During a March 2007 private pulmonology visit, the Veteran continued to complain of dyspnea. He was able to work full time. He currently had no sputum production but did have right upper quadrant pain. Oxygen saturation at rest on room air was 97 %. Spirometry testing showed somewhat reduced effort and was difficult to interpret. The pattern on the spirogram was identical to all of the postoperative studies. A February 2007 CT scan looked clear except for some minimal postoperative changes. The pulmonologist commented that the Veteran looked clinically better than his pulmonary functions. March 2007 private pre-bronchodilator PFTs show that FEV-1 was 29 %. FVC was 28%. FEV-1/FVC was 84%. During an August 2007 private pulmonology visit, the Veteran's pulmonary function tests were unchanged from previous testing. He had some difficulty with the testing so the results were of uncertain significance. August 2007 private pre-bronchodilator PFTs show that FEV-1 was 26%. FVC was 22%. FEV-1/FVC was 110% and DLCO was 44 %. An August 2007 private progress note shows that the Veteran was seen for a pulmonary check-up. His oxygen saturation at rest on room air was 96 %. Pulmonary function tests were unchanged. The Veteran had difficulty performing the maneuver, so the results were of uncertain significance. The pertinent diagnostic impression was asthma. In a December 2007 letter, a private pulmonologist indicated that she had reviewed the Veteran's earlier pulmonary function tests. She noted that he had difficulty performing the flow volume maneuver, which resulted in abnormal tests that were difficult to interpret. This pattern had been completely consistent on the multiple testing performed. It appeared that this pulmonary function abnormality was related to postoperative changes in the chest and not an effort-dependent phenomenon. At a May 2008 QTC examination, the examiner noted the Veteran's current medications were Advair, Albuterol nebulizers, Prednisone and antibiotics off and on. PFTs before bronchodilator revealed that FVC was 17%. FEV1 was 20%, and the FEV1/FVC value was 98.6%. PFTs after bronchodilator revealed that FVC was 49%, FEV1 was 38% and FEV1/FVC was 65%. The QTC examiner noted that the Veteran's effort was poor. There was no discrepancy between the PFT findings and the clinical examination. A DLCO was not done as the PFT results were sufficient to evaluate the pulmonary status of the Veteran. The examiner diagnosed the Veteran with scar, status post thoracotomy for aspergillosis. April 2009 private PFTs showed FEV-1 was 47 % pre-bronchodilator and 49 % post bronchodilator. FVC was 47% pre-bronchodilator and 45 % post bronchodilator. FEV-1/FVC was 84% pre-bronchodilator and 92 % post bronchodilator. DLCO was 56%. During the August 2009 Board hearing, the Veteran testified that due to his aspergillosis, from time to time he experienced nose infections and upper respiratory infections. Consequently, he ended up having to take antibiotics. These infections would occur about three or four times per year. The condition also significantly affected his breathing. The Veteran felt that under the criteria for rating residuals of lobectomy, his PFT scores entitled him to a rating of at least 60%. The Veteran testified that since the lobectomy he could not play with his children. He had also separated from his wife, at least in part because he could not perform sexually. He was currently taking a nebulizer, Advair Diskus 550, an Albuterol inhaler and Flonase. Additionally, he reported that he did have a productive cough, with big brown phlegm with a little bit of blood in it. During a September 2010 VA examination, the Veteran reported recurrent breathing problems. He indicated that he had trouble finishing tasks on time and was not able to do any heavy lifting because he tired easily. He noted that he coughed out a dark brown thick chewy substance admixed with sputum occurring several times per week with occasional hemoptysis. He experienced dyspnea with rest and exertion and times when he had no appetite. He denied a history of asthma. He occasionally received oxygen therapy during a doctor's visit. Pulmonary function testing showed that DLCO was severely reduced. While there was no obstruction by FEV1/FVC, a component of air trapping was observed. There was moderately severe restriction and severe diffusion impairment. The diagnoses were aspergillosis, resolved and status post right lobe lobectomy with restrictive lung disease secondary to scarring. The examiner indicated that there was mild functional limitation. During a November 2011 VA examination, PFT testing showed a moderate restriction with rather dramatic, dynamic air trapping that substantially improved with a bronchodilator. In fact, post bronchodilator, the Veteran's PFT was consistent with a pure restrictive impairment. Diffusion capacity was moderately reduced. The diagnosis was status post upper lobectomy secondary to asperigilloma, resolved, with a residual of moderate restrictive respiratory pattern. The examiner indicated that there was currently no functional limitation. The examiner commented that testing was not compatible with active aspergilloma. The DLCO finding was affected by multiple factors, which made it highly unreliable for determination of vital capacity. After bronchodilator, PFT findings essentially showed a restrictive pattern consistent with status post lobectomy, although the total volumes were limited beyond what was expected. Based on the Veteran's pre and post-bronchodilator results, the Veteran's volumes exceeded the percentage predicted. Hence his VO2 max was calculated as 15 to 25 mg/kg/min. An average metabolic work job was less than 40 percent of VO2 max. Therefore, the Veteran was capable of performing an average job comfortably. It was noted that the Veteran experienced occasional productive cough, occasional minor hemoptysis, fever and night sweats and shortness of breath. Pulmonary function testing showed that FEV-1 was 24 % pre-bronchodilator and 56 % post-bronchodilator. FVC was 22% pre-bronchodilator and 50% post-bronchodilator. FEV-1/FVC was 85% pre-bronchodilator and 90% post-bronchodilator. DLCO was 44%. The examiner indicated through use of a "check box" that the FEV1/FVC percentage most accurately reflected the Veteran's current pulmonary function. The examiner also found that the Veteran's respiratory condition did not impact his ability to work. B. Analysis The noncompensable rating in place prior to August 10, 2009 and the 30 percent rating in place thereafter have been assigned under Diagnostic Code 6844, for post-surgical residuals of lobectomy. 38 C.F.R. § 4.97. Disabilities under this Code are in turn evaluated under the General Rating Formula for Restrictive Lung Disease and require application of the results of pulmonary function testing. Under this formula, a 100 percent evaluation is warranted if the Forced Expiratory Volume in one second (FEV-1) is less than 40 percent of predicted value, or; the ratio of FEV-1/Forced Vital Capacity (FVC) is less than 40 percent, or the Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath method (DLCO (SB)) is less than 40-percent predicted, or the maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or there is cor pulmonale (right heart failure), or there is right ventricular hypertrophy, or there is pulmonary hypertension (shown by echo or cardiac catheterization), or; there is an episode(s) of acute respiratory failure, or the Veteran requires outpatient oxygen therapy. If the FEV-1 is 40- to 55-percent of predicted, or if the FEV-1/FVC 40 to 55 percent of predicted, or the DLCO (SB) is 40 to 55 percent of predicted, or there is maximum oxygen consumption of 15 to 20 ml/kg/min (with cardio respiratory limit), a 60 percent evaluation is warranted. A 30 percent evaluation is warranted if the FEV-1 is 56 to 70 percent of predicted, or the FEV- 1/FVC is 56 to 70 percent of predicted, or the DLCO (SB) is 56 to 65 percent of predicted. VA amended the rating schedule concerning respiratory conditions, effective October 6, 2006. VA added provisions that clarify the use of PFTs 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. The Board notes that the diagnostic code under which the Veteran is rated is among the diagnostic codes noted under 38 C.F.R. § 4.96(d). However, a review of the regulatory changes which affect the current claim reveals that all regulatory changes pertinent to this claim are non-substantive in nature, and merely interpret already existing law. Post-bronchodilator studies are required when PFTs are conducted for disability evaluation purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96. When there is a disparity of between the results of different PFTs so that the level of evaluation would differ depending on which test result in used, VA may use the test result that the examiner states most accurately reflects the level of disability. Id. As the Veteran has been diagnosed with aspergillosis, a rating under Diagnostic Code 6838 may also be considered. 38 C.F.R. § 4.97. Under this code, a noncompensable evaluation is warranted where the Veteran is essentially asymptomatic, with evidence only of healed and inactive mycotic lesions. A 30 percent evaluation requires evidence of chronic pulmonary mycosis with minimal symptoms such as occasional minor hemoptysis or a productive cough, while a 50 percent evaluation requires a need for suppressive therapy, with no more than minimal symptoms such as occasional minor hemoptysis or a productive cough. A 100 percent rating is assigned for chronic pulmonary mycosis with persistent fever, weight loss, night sweats or massive hemoptysis. Id. Ratings under 38 C.F.R. § 4.96, Diagnostic Codes 6822 through 6847 will not be combined. A single rating will be assigned under the rating code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96 (a). The evidence shows DLCO and FEV-1 and findings consistent with assignment of a higher 60 percent rating throughout the entire appeal period. DLCO was 47 % in October 2006, 44 % in March and August 2007, and 44 % in November 2011. Additionally, it was noted to be severely restricted in September 2010. It was found to be 56% in April 2009 but this is an isolated finding, and only one percentage point higher than the threshold for assignment of a 60 percent rating. Similarly, FEV-1 was 44 % pre-bronchodilator in July 2006 (with a lower post-bronchodilator finding), 45 % post-bronchodilator in October 2006 and 49 % post-bronchodilator in April 2009. There are also FEV-1 findings of record lower than 40 %, suggesting the possibility of assigning a higher, 100 percent rating. A number of these findings come from test results, which only include pre-bronchodilator findings, however, and the record clearly shows a substantial improvement in the Veteran's function when post-bronchodilator testing is employed. There are also post-bronchodilator findings of FEV-1 below 40 %, from March 2006, May 2006, December 2006 and May 2008. However, more moderate findings in excess of 40 % were shown at a wider range of points across the appeal period. In this regard, the September 2011 VA post-bronchodilator FEV-1 finding was actually 56 %, which is compatible with a lower, 30 percent rating and an earlier May 2006 FEV-1 finding was actually 57%, which is also compatible with a 30 percent rating. Thus, the Board finds that assignment of a 60 percent rating, but no higher, is most compatible with the overall pattern of FEV-1 results. As cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, acute respiratory failure, FEV-1/FVC less than 40%, maximum exercise capacity less than 15 ml/kg/min oxygen consumption and the necessity of receiving oxygen therapy have not been shown, there is no other basis for assigning a 100 percent rating under Diagnostic Code 6844. During the September 2010 VA examination, the Veteran reported that he had occasionally received oxygen therapy during a doctor's visit but in the absence of any evidence that ongoing therapy has been required, assignment of a higher 100 percent rating on this basis is not warranted. The September 2011 VA examiner did indicate that the FEV-1/FVC test result most accurately reflected the Veteran's current pulmonary function, a conclusion that might indicate that assignment of a lower rating is appropriate. However, the examiner did not offer any explanation of this opinion, other than peripherally noting that he felt that the DLCO findings were unreliable for testing vital capacity. Thus, as this opinion was not expressed by any other physician at any other time during the rating period, and as it did not include an assessment that the FEV-1 findings were also unreliable, it provides an insufficient basis for assigning a pulmonary function rating based solely on FEV-1/FVC results. Additionally, while the Veteran was noted at times to have been exhibiting poor effort on PFTs, the December 2007 private pulmonologist specifically found that this was not the case, noting that his PFTs had followed a consistent pattern related to postoperative changes in the test. Given this specific finding, the Board finds that poor effort on the testing has not been established. The Board has also considered whether a higher rating could be assigned under Diagnostic Code 6838. However, as persistent fever, weight loss, night sweats or massive hemoptysis is not shown, a rating in excess of 60 percent under this code is not warranted. Also, assignment of a separate rating under this code is impermissible. 38 C.F.R. § 4.96 (a). Additionally, as explained above, the Board does not find that elevation to the next rating level above 60 percent under Diagnostic Code 6844 is warranted. The above determination is based upon consideration of applicable rating provisions. Additionally, there is no showing that the Veteran's service-connected respiratory disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. 38 C.F.R. § 3.321(b)(1). His symptoms have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether an extra-schedular rating is required is not warranted. See Thun v. Peake, 22 Vet. App. 11, 115-16 (2008). In sum, considering both schedular and extra-schedular criteria, assignment of a 60 percent but no higher rating for the Veteran's aspergillosis status post partial lobectomy and thoracotomy is warranted for the entire appeal period. ORDER Entitlement to an initial 60 percent rating, but no higher, for aspergillosis status post partial lobectomy and thoracotomy is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs