Citation Nr: 1304254 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 10-24 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an evaluation in excess of 30 percent for restrictive lung disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from February 1946 to March 1949. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in a videoconference hearing in October 2010; a transcript of that hearing is of record. An October 2010 Board decision, in pertinent part, denied the Veteran's claim for an evaluation in excess of 30 percent for his restrictive lung disease. The Veteran thereafter appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). By its May 2011 order, the Court granted a Joint Motion for Remand, vacated that part of the October 2010 Board decision that denied the Veteran's claim for an evaluation in excess of 30 percent for restrictive lung disease, and remanded the matter for readjudication consistent with the motion. In September 2011, the Board remanded the matter to the RO via the VA's Appeals Management Center (AMC) in Washington, DC, and following the AMC's completion of the actions requested, the case was returned to the Board. In August 2012, the Board, pursuant to 38 U.S.C.A. § 7109 (West 2002), sought a medical expert opinion as to matters raised by this appeal through the VA's Veterans Health Administration (VHA). That opinion was received by the Board in October 2012 and a copy of that opinion was furnished to the Veteran in November 2012. In response, the Veteran indicated that he had no additional evidence or argument to submit; the response received from his service representative was submitted to the Board in January 2013. Notice is taken that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence is at least in relative equipoise that the Veteran's service-connected restrictive lung disease is totally disabling, based on a lung diffusion score that was nine percent of predicted normal. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the schedular criteria for the assignment of a 100 percent rating for restrictive lung disease have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6603 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the disposition herein reached is favorable to the Veteran, the need to discuss the VA's efforts to comply with the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), as codified in the United States Code, its implementing regulations, or the body of law interpretive thereof, is obviated. The same is true as to the question of whether VA substantially complied with the Board's directives set forth in its earlier remand. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). By this appeal, based on a claim for increase received by VA in January 2009, the Veteran seeks a schedular evaluation in excess of 30 percent for his service-connected restrictive lung disease. He cites the results obtained on recent pulmonary function studies which showed a reduction of lung diffusion capacity to nine percent of predicted normal. While he acknowledges the existence of evidence contraindicating entitlement, he argues that the evidence is at least in relative equipoise as to the existence of totally disabling restrictive lung disease. The Board concurs for the reasons set forth in detail below. Disability ratings are intended to compensate impairment in earnings capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes (DCs) identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). In Hart v. Mansfield, 21 Vet. App. 505 (2007), it was held that "staged ratings are appropriate for an increased-rating claim when the factual findings shown distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Service connection for chronic pulmonary tuberculosis with postoperative residuals of a lobectomy of the right middle lobe was established by VA action in April 1949, at which time a 100 percent rating was assigned under DCs 6713, 6816. That rating was reduced initially to 50 percent, and then to 30 and to 0 percent in subsequent years under DC 6723. By rating action in December 1972, the rating was increased to 10 percent under DC 7804-6723. By further rating action in January 1978, the RO separately evaluated the Veteran's restrictive lung disease as 30 percent disabling from September 1977 under DC 6603-6723 and his thoracotomy scar and associated neuralgia as 10 percent disabling. The thoracotomy scar and associated neuralgia are not the subject of the instant appeal and are not herein further addressed. The Veteran's service-connected lung disease is rated by the RO under 38 C.F.R. § 4.97, DC 6603, and the Board finds that DC to be the most appropriate basis for the evaluation of the Veteran's restrictive lung disease. Under DC 6603, a 10 percent rating is for assignment where forced expiratory volume in one second (FEV-1) is 71- to 80-percent predicted; or if the FEV-1 to forced vital capacity (FVC) ratio is 71 to 80 percent; or if diffusion capacity of the lung for carbon monoxide (DLCO) by the single breath method (SB) is 66- to 80-percent predicted. The current 30 percent rating contemplates FEV-1 of 56- to 70-percent predicted; or FEV- 1/FVC of 56 to 70 percent; or DLCO (SB) of 56- to 65-percent predicted. Under DC 6603, the next higher 60 percent rating requires 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). A 100 percent rating requires FEV-1 less than 40 percent predicted; or FEV-1/FVC less than 40 percent; or DLCO(SB) of less than 40-percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiorespiratory limitation); or cor pulmonale (right-sided heart failure); or right ventricular hypertrophy; or pulmonary hypertension (shown by echo or cardiac catheterization); or an episode or episodes of acute respiratory failure; or requires outpatient oxygen therapy. 38 C.F.R. § 4.97, DC 6603. On VA examination in February 2010, pulmonary function tests (PFT) showed an FEV-1 of 77 percent predicted, an FEV-1/FVC of 70 percent, a DLCO/unc of 9 percent predicted, and a DL/VA of 44 percent predicted. While the Veteran was noted to experience problems in understanding the "pleth" and DLCO maneuvers, his efforts on PFTs were described by the test administrator to be "good." In an addendum report prepared in April 2010, the VA examiner stated that there was no physical examination evidence of right heart failure, no radiographic evidence of right ventricular hypertrophy, and no report of any acute respiratory failure episodes since service or a requirement for use of outpatient oxygen. A May 2010 report of telephone contact indicated that the VA examiner found the FEV-1/FVC result was the "most representative of the Veteran's restrictive lung disease." On remand, further input from the VA examiner in February 2010 was obtained and reflected in an October 2011 addendum to her earlier report. Therein, the VA examiner stated that the main parameters for determining the severity of the Veteran's restrictive lung disease were the FEV1/FVC and TLC values. Also, she indicated that the DLCO score was utilized to determine if the restriction was due to a parenchymal or extraparenchymal source, but was not a basis for the rating of the severity of restrictive lung disease. Prior PFTS and, specifically, a normal DLCO in 2001, were judged to be consistent with an extraparenchymal process. Pursuant to the Board's request, this matter was referred for a medical expert opinion from a VA pulmonary physician. That VHA opinion was obtained in October 2012 and, although the expert cited to pre-bronchodilation values obtained on PFTs in 2010, as opposed to post-bronchodilation scores, he found no change in the absolute value for TLC in comparing PFTS in 2001 and 2010, and noted that the TLC interpreted as abnormal in 2001 and normal in 2010 was the result of the Veteran's aging and that predicted values were relatively lower for persons of the Veteran's age group. He set forth his disagreement with the 2010 examiner as to the best measure for ascertaining the severity of the Veteran's restrictive lung disease, noting that TLC or FVC as percents of predicted values were the best measures. He also found that the DLCO score of nine percent should be considered an accurate value upon which to evaluate the disability in question and one indicating a severe process affecting the Veteran's lungs. The expert conceded that there existed a possibility that the low DLCO score might be indicative of an inability to perform the test or a leak from the mouthpiece, but the record did not permit him to exclude the DLCO as other than a true value. The expert then discussed the ratings for assignment on the basis of whether the DLCO score was a valid or invalid value, albeit without full consideration of the DC on point. The Board takes note of the Veteran's credible and probative testimony that his service-connected restrictive lung disease is more disabling than is reflected by the currently assigned evaluation of 30 percent. The Veteran is certainly competent to state what comes to him through his senses, see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), particularly as it concerns the symptoms and manifestations of the disability in question. The only PFTs undertaken in connection with the claim for increase herein at issue were those conducted in February 2010. Notwithstanding a difference in opinion between the VA examiner in 2010 and the VA medical expert as to the interpretation of those PFTs and the best measure of the severity of the disability in question, as well as certain other deficiencies regarding the opinions of record, there is no question that a DCLO score of nine percent was shown on the PFTS of February 2010. There is no probative evidence that the Veteran expended other than good efforts in completing that testing and the VA's own medical expert has opined that, absent a showing to the contrary, the nine percent score on DLCO testing should be considered a true and valid PFT value and a measure by which the Veteran's severe restrictive lung disease should be evaluated. To that end, and with resolution of reasonable doubt in the Veteran's favor, the Board assigns a 100 percent schedular evaluation under DC 6603 for the entirety of the period at issue. Hart, supra. ORDER A 100 percent schedular evaluation is assigned for restrictive lung disease, subject to those provisions governing the payment of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs