Citation Nr: 1308507 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 11-05 503A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right hand disability, secondary to service-connected degenerative joint disease of the left knee. 2. Entitlement to an evaluation in excess of 30 percent for residuals of pulmonary infarction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from November 1942 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 RO decision that, in part, denied service connection for a right hand disability secondary to the service-connected left knee disability and an April 2011 decision that assigned an increased rating to 30 percent for pulmonary infarction residuals. Please note 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). The issue of service connection for a right hand disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT From June 7, 2010, the Veteran's pulmonary infarction residuals have been manifested by dyspnea on exertion and pleural parenchymal scarring, with FEV-1 value of no less than 66 percent, FEV-1/FVC value of no less than 63 percent, and DLCO (SB) value of no less than 62 percent; there was no cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or restrictive airway disease. CONCLUSION OF LAW From June 7, 2010, the criteria for a 30 percent evaluation, and no higher, for residuals of pulmonary infarction have been met. 38 U.S.C.A. §§ 1155, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.97, Part 4, Diagnostic Codes 6817-6845 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Concerning the increased rating claim for pulmonary infarction residuals, the notification obligation was accomplished by way of a letter from the RO to the Veteran dated in September 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All service treatment records (STRs) and VA medical records have been obtained and associated with the claims file. There are no VA electronic medical records. The Veteran was examined by VA during the pendency of this appeal and was afforded an opportunity for a personal hearing, but declined. The Board finds that the VA examination was comprehensive and adequate upon which to base a decision on the merits of the issue addressed in this appeal. The VA examiner personally interviewed and examined the Veteran, elicited a medical history and provided the information necessary to evaluate his respiratory disorder under the applicable rating criteria. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Increased Ratings - In General In general, when 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). However, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Pulmonary Infarction Disorder Initially, it should be noted that the Board has reviewed all the evidence of record, including but not limited to the Veteran's contentions, the VA outpatient notes from 2008 to the present, and the findings from the VA examination conducted during the pendency of this appeal. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, it is not required to discuss each and every piece of evidence in a case. The relevant evidence including that submitted by the Veteran will be summarized where appropriate. Historically, service connection was established for pulmonary infarction, resolved by the RO in December 1967, based on a finding that the Veteran's pulmonary infarction in June 1967, was the result of a blood clot first manifested a few weeks after he had surgery on his service-connected left knee disability. The Veteran was initially assigned a 100 percent rating under 38 C.F.R. § 4.29 for hospitalization from June 1967, and a noncompensable evaluation; effective from December 1, 1967. The noncompensable rating was in effect when the Veteran filed a claim for an increased rating in 2010. By rating action in April 2011, the RO assigned an increased rating to 30 percent for residuals of his pulmonary disorder; effective from August 19, 2010, the date of receipt of the claim for increase. 38 C.F.R. § 3.400(0)(2). Because there is no rating code specifically for pulmonary infarction residuals, the RO assigned the 30 percent evaluation by analogy to Diagnostic Codes (DC) 6817-6845. Under DC 6817, for pulmonary vascular disease, a 30 percent evaluation is assigned following resolution of acute pulmonary embolism; 60 percent for chronic pulmonary thromboembolism requiring anticoagulant therapy, or; following inferior vena cava surgery without evidence of pulmonary hypertension or right ventricular dysfunction. A 100 percent evaluation is assigned for primary pulmonary hypertension, or; chronic thromboembolism with evidence of pulmonary hypertension, right ventricular hypertrophy, or cor pulmonale, or; pulmonary hypertension secondary to other obstructive disease of pulmonary arteries or veins with evidence of right ventricular hypertrophy or cor pulmonale. The accompanying Note directs that other residuals following pulmonary embolism are to be rated under the most appropriate diagnostic code, such as chronic bronchitis (DC 660) or chronic pleural effusion or fibrosis (DC 6844), but that the ratings are not to be combined with any of the above evaluations. DC 6845 provides, in pertinent part, for a 30 percent evaluation with a FEV-1 of 56 to 70 percent predicted, or a FEV-1/FVC of 56 to 70 percent, or DLCO (SB) of 56 to 65 percent predicted; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 60 percent evaluation with a FEV-1 of 40 to 55 percent predicted, or a 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 evaluation is assigned with a FEV-1 of less than 40 percent predicted, or; FEV-1/FVC of less than 40 percent, or; DLCO (SB) of less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min (with cardiac or respiratory limit), 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; outpatient oxygen therapy. 38 C.F.R. § 4.97, DC 6845. Under VA's rating procedures, use of post-bronchodilator findings is standard in pulmonary assessment and assures consistent evaluations. See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996) (VA assesses pulmonary function after bronchodilation). The Veteran has not offered any specific contentions regarding the 30 percent evaluation assigned for his pulmonary disorder, other than to disagree with the rating assigned. The evidence of record showed that the Veteran was first seen for respiratory complaints at a VA ENT clinic on June 7, 2010, and that he reported coughing at night, dyspnea and some wheezing. The Veteran was seen for the same complaints in July 2010. A VA outpatient note dated in August 2010, indicated that the Veteran was scheduled for a CT chest scan. A VA CT scan in September 2010, showed a 1-cm pleural parenchymal opacity within the right lower lobe posterior to the basal aspect, which the radiologist indicated most likely represented either an area of pleural parenchymal scarring or minimal atelectatic changes following recent inflammatory infectious process. The respiratory findings from a VA pulmonary function test (PFT) in October 2010 showed a post-bronchodilator FEV-1 value of 67.3 percent, an FEV-1/FVC value of 68 percent, and a DLCO-SB value of 62.6 percent. The interpretation was moderate obstructive ventilator defect without significant improvement after inhaled bronchodilatory, and slight increase in diffusion capacity. The diagnosis on VA examination in May 2012, was chronic obstructive pulmonary disease (COPD). The examiner indicated that the Veteran required use of low dose corticosteroids and intermittent inhalational bronchodilatory, but did not require use of oral bronchodilators, antibiotics or oxygen therapy. The examiner opined that the Veteran's pulmonary embolism condition was asymptomatic, and that the predominant disorder responsible for his limitation of pulmonary function was COPD. The PFT findings that most accurately reflected the level of disability was the DLCO values. Applying the appropriate diagnostic codes to the facts of this case, the objective assessment of the Veteran's present impairment from his pulmonary disorder is commensurate with the criteria for a 30 percent evaluation, and no higher. However, as the evidence showed that the Veteran was treated for increased respiratory symptoms within one year of receipt of his claim for increase, the 30 percent evaluation should be made effective from June 7, 2010, the date of the VA outpatient note that first showed compensable symptomatology under the rating criteria discussed above. 38 C.F.R. § 3.157. Other than the effective date for the assignment of the 30 percent evaluation, the RO has applied the rating schedule accurately, and there is no basis under the applicable criteria for the assignment of an evaluation in excess of 30 percent at any time during the pendency of this appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the manifestations of the Veteran's pulmonary infarction residuals are consistent with the schedular criteria, and there is no objective or competent medical evidence that any manifestation related to the service-connected disability is unusual or exceptional. The schedular rating criteria adequately contemplate the degree of impairment caused by his respiratory disorder, and provides for a higher rating with more severe pulmonary findings. In view of this, referral of this case for extraschedular consideration is not in order. Finally, the Board notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part of the claim for benefits for the underlying disability. Id. Here, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. The Veteran is 85 years of age and has been retired for many years. Moreover, the objective findings of record do not show or otherwise suggest that his current pulmonary infarction residuals would preclude substantially gainful employment. ORDER An increased evaluation to 30 percent and no higher, from June 7, 2010, is granted, subject to VA laws and regulations pertaining to the payment of monetary benefits. REMAND The Veteran contends that his current right hand problems are related to his service-connected left knee disability, and believes that service connection should be established on a secondary basis. Service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Claims of secondary service connection also include instances in which there is an additional increment of disability of a nonservice-connected disability due to aggravation by an established service-connected disability. In this case, although the Veteran was examined by VA during the pendency of this appeal, the examiner did not address the question of aggravation, vis-à-vis, whether the Veteran's current right hand disability was aggravated by the service-connected left knee disability. Where a medical examination does not contain sufficient detail to decide the claim on appeal, the Board must return the report as inadequate for evaluation purposes. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); see also, Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (noting that once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In this case, the Board finds that the VA examination was inadequate, and that further development is necessary to address all of the medical questions concerning the Veteran's theories of entitlement. On remand, therefore, the Veteran's claim should be returned to the VA examiner who performed the January 2011 examination, if available, to provide an opinion regarding secondary service connection and, specifically, the issue of aggravation. While the Board is cognizant of the difficulty in rendering an opinion on this matter, VA is required to attempt to obtain a clear and unambiguous medical opinion based on the available evidence of record. If, after review of all the pertinent evidence of record, the examiner is unable to render an opinion, he or she must include a discussion of all relevant facts and provide an explanation as to why an opinion would be speculative. 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) (2012). Expedited handling is requested.) 1. The claims file should be returned to the VA examiner who evaluated the Veteran in January 2011, or if unavailable, the Veteran should be scheduled for another VA examination by a qualified physician. The examiner should note in the examination report that the claims file has been reviewed. All indicated tests and studies should be accomplished. The examiner should describe all findings in detail and provide a complete rationale for all opinions offered. Following a complete review of the claims folder and examination of the Veteran, the examiner should render an opinion as to whether it is at least as likely as not that any current right hand disability is proximately due to, the result of, or aggravated by the service-connected left knee disability. A fully articulated medical rationale for any opinion expressed should be set forth in the examination report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If the examiner is unable to render an opinion without resorting to speculation, this should be noted and explained. In so doing, the examiner should identify the evidence required in order to render a non-speculative opinion, or indicate the inability to provide the opinion is based on the limits of medical knowledge. If the examiner is unable to render an opinion because of a lack of specified evidence, the AMC should attempt to obtain that evidence and return the claims file to the examiner for completion of the opinion. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 2. Following completion of the foregoing, the AMC must review the claims file and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. See 38 C.F.R. § 4.2 (2012). 3. After the requested development has been completed, the AMC should readjudicate the merits of the claim. This should include consideration of whether any current right hand disability is proximately due to, the result of, or aggravated by the service-connected left knee disability. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, 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. The Veteran 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. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs