Citation Nr: 1319030 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-23 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial evaluation in excess of 60 percent for spindle cell carcinoma of the lung from November 29, 2011 to February 3, 2013. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 4, 2013. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1954 to July 1957, and May 1959 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for lung cancer and assigned a 30 percent disability evaluation for that disability, effective April 21, 2006-the date on which the Veteran filed his claim for service connection. The Veteran timely appealed that issue. The case was initially before the Board in April 2012, which, inter alia, remanded the claim for an increased rating for spindle cell carcinoma of the lung, from November 29, 2011, and held that a claim for TDIU was part and parcel of a claim for increase. See Rice v. Shinseki, 23 Vet. App. 447 (2009). That decision additionally granted a 60 percent evaluation for that disability, effective April 21, 2006. The case was returned to the Board in January 2013, when the Board again remanded for additional development. That development having been completed, the case has again been returned to the Board for further appellate review at this time. During the pendency of the last remand, the Veteran was awarded a 100 percent evaluation for his spindle cell carcinoma of the lung in an April 2013 rating decision. The issues on appeal have been recharacterized to reflect the award of that evaluation. 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). FINDINGS OF FACT 1. During the period of November 29, 2011 to February 3, 2013, the evidence of record does not demonstrate FEV-1, FEV-1/FVC, or DLCO (SB) values less than 40 percent of predicted in post-bronchodilator testing; any episodes of acute respiratory failure; use of outpatient oxygen therapy; cor pulmonale; right ventricular hypertrophy; pulmonary hypertension; or, an exercise capacity less than 15 ml/kg in oxygen consumption. 2. For the period prior to February 3, 2013, the Veteran's service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment, based on his education level and past work experience, at this time. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 60 percent, for the period prior to February 3, 2013, for spindle cell carcinoma of the lung are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6844 (2012). 2. The criteria for a TDIU prior to February 4, 2013 are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased evaluation claim for spindle cell carcinoma of the lung arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With regards to the TDIU claim, the Veteran was sent a letter in June 2012 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify with the claims herein decided. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims herein decided. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Background The Veteran underwent a VA examination in October 2007, at which time he reported that he had chronic moderate dyspnea and was able to carry on with doing some home yardwork and was able to mow his lawn with a need to take rest breaks. No opinion with regards to employability was rendered at that time. In a May 2008 letter from Dr. H.L., it was noted that the Veteran had severe lung disease "along with a number of other medical problems, including cardiac disease for which he has a pacemaker in place. The [Veteran] is unable to work." The Veteran submitted an Application for TDIU, VA Form 21-8940, in June 2008, which noted that he last worked as a Security Supervisor in May 1989. He averred that the only condition which made him unemployable was his lung condition; he checked the "Yes" box in item 17, which noted that he left his employment because of his disability, though he left box 24 blank with regarding reasons for that departure. He noted that he did not receive workers' compensation or disability retirement benefits; he further indicated that he had not attempted to obtain employment since leaving his last job. While the Veteran did not note what education level he had completed, he did note that he had an Administration of Criminal Justice education background and that he worked as a Security Supervisor with the Federal Law Enforcement Center in Georgia for 18 years, prior to leaving his job. In a November 2010 VA examination, the Veteran denied any limitations in his ability to care for own activities of daily living, such as bathing or grooming, or his ability to drive. He was able to complete simple chores, such as light vacuuming, washing dishes, making his bed, etc. He had to pay someone to do his yardwork. He reported that he was no longer able to do any activities that require prolonged walking or heavy lifting; he could no longer exercise and could only walk about 5 to 10 minutes before having to stop and rest. He finally reported that he was laid off a year after his surgery, in 1996, "because [he] could no longer perform the job duties as a security supervisor at the Federal Law Enforcement Center." On November 29, 2011, the Veteran performed a PFT, which revealed the following results (post-bronchodilator only): FEV-1: 66 percent of predicted FVC: 65 percent predicted FEV-1/FVC: 99 percent predicted DLCO (SB): 64 percent predicted The examiner stated that the Veteran's PFT results were positive for mild obstructive defect, poor bronchodilator response, and that restrictive lung defect cannot be excluded and mildly reduced diffusing capacity; he had normal ABG. It was also noted that the DLCO (SB) test was the most accurate reflection of the Veteran's pulmonary condition. That VA examination, however, did not address any other ratable criteria necessary to evaluate the Veteran's condition; the Veteran's PFT results were all that was obtained at that time. Based on those results, the Board determined in its April 2012 decision that a new VA examination was required on the basis of those results and remanded in order to obtain another VA examination. The Veteran underwent another VA examination of his respiratory disorder in September 2012 at the Augusta VA Medical Center. In that examination it was noted that the Veteran had spindle cell carcinoma of the lung. The Veteran did not take oral parental corticosteroids, though he did take inhalational bronchodilator and anti-inflammatory therapies, as well as Advair diskus which he inhaled twice a day. The Veteran reported being intermittently put on antibiotics for infection, but he did not require outpatient oxygen therapy. The examiner noted that the Veteran had a lobectomy in the mid-1990's in order to excise malignant tumors. The reported symptoms included breathlessness and shortness of breath with minimal activity due to the lobectomy. He used inhalers daily. A chest x-ray demonstrated a nodule in the left perihilar region, which he was told to follow-up with his primary care physician for. At that time, there was no evidence that the Veteran required outpatient oxygen therapy, any episodes of acute respiratory failure, cor pulmonale, right ventricular hypertrophy, or, pulmonary hypertension; an exercise test was not performed at that time. A PFT yielded the following results (post-bronchodilator only): FEV-1: 62 percent of predicted FVC: 63 percent predicted FEV-1/FVC: 96 percent predicted DLCO (SB): 44 percent predicted The examiner noted that the Veteran's DLCO (SB) results were most reflective of his pulmonary condition. The examiner noted that the Veteran's PFT revealed evidence of restriction with no significant response to bronchodilator with moderate reduction in DLCO. The claims file was reviewed. The examiner additionally opined that The Veteran cannot do physical work due to shortness of breath and breathlessness with minimal activity. He has to use his inhalers about 3-4 times per day. He stated that he has to stop doing daily tasks often due to his shortness of breath. This condition would not affect his ability to do sedentary employment as long as he could sit for 90 percent of his daily activities. Based on the fact that an exercise test had not been performed, the Board remanded for another VA examination in January 2013. The Veteran underwent a VA examination in February 2013. Another PFT test was not performed, and the September 2012 PFT results were listed; likewise, the x-ray results from September 2012 were also re-entered into the examination report. The examination report is largely unchanged from the September 2012 examination report. The examiner noted that an echocardiogram was performed at that time which revealed concentric hypertrophy consistent with hypertension but no evidence of pulmonary hypertension. The examiner additionally noted that the Augusta VA Medical Center does not have the capability to perform an exercise test either in-house or on a contractual basis. It was noted that if the results of that examination were not complete enough to evaluate the Veteran, he should be referred to a facility that performs or can contract to perform the requested testing. No further opinion with regards to employability was requested and none was provided by the examiner. The Board has reviewed the other private and VA treatment records in the claims file. However, those records do not provide any further evidence with regard to the ratable criteria necessary for evaluating the Veteran's respiratory disorder during the period on appeal at this time nor do they provide any further evidence with regards to employability. Analysis The Board has reviewed all of 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 the Veteran 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Increased Evaluation for Lung Cancer 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 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 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 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); 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 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran is currently assigned a 60 percent evaluation for his spindle cell carcinoma of the lung for the period of November 29, 2011 to February 3, 2013; as of February 4, 2013, the Veteran has been assigned a 100 percent evaluation for that disability. As 100 percent is the highest evaluation possible, the Board will only deal with the period of November 29, 2011 to February 3, 2013 in this decision. The Veteran's disability evaluation has been assigned under 38 C.F.R. § 4.97, Diagnostic Code 6844. Diagnostic Code 6844, for post-surgical residuals (lobectomy, pneumonectomy, etc.), uses the General Rating Formula for Restrictive Lung Diseases. Under that General Rating Formula, a 60 percent evaluation is assigned for Forced Expiratory Volume in one second (FEV-1) of 40 to 55 percent of predicted; FEV-1/Forced Vital Capacity (FEV-1/FVC) of 40 to 55 percent; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 40 to 55 percent predicted; or, a maximum exercise capacity of 15 to 20 ml/kg in oxygen consumption (with cardiorespiratory limit). A 100 percent evaluation is assigned for an FEV-1 less than 40 percent of predicted value; FEV-1/FVC less than 40 percent; DLCO (SB) less than 40 percent predicted; a maximum exercise capacity of less than 15 ml/kg in oxygen consumption (with cardiac or respiratory limitation); cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catherization); episodes of acute respiratory failure; or, requiring outpatient oxygen therapy. See 38 C.F.R. § 4.97, General Rating Formula for Restrictive Lung Disease, Diagnostic Code 6844 (2012). The Board notes that post-bronchodilator results are to be used to when evaluating pulmonary functioning tests (PFTs) unless those results were poorer than the pre-bronchodilator results, in such cases the pre-bronchodilator results should be used. See 38 C.F.R. § 4.96(d)(5) (2012). The Board additionally notes that if the FEV-1, FVC, etc. results are in disparity with regards to the proper evaluation level to be assigned, the test result indicated by the examiner as most accurately reflecting the level of disability is to be used. See 38 C.F.R. § 4.96(d)(6). In the April 2013 rating decision, the RO/AMC assigned a 100 percent effective February 4, 2013-the date of the Veteran's most recent VA examination-on the basis of the echocardiogram showing concentric hypertrophy. There is a medical difference between right ventricular hypertrophy and concentric hypertrophy. The Board notes that concentric hypertrophy is not a criterion for which a higher evaluation can be predicated with regards to a pulmonary condition. The Board is leaving undisturbed the Veteran's 100 percent evaluation award as noted in the April 2013 rating decision; however, the Board further notes that the underlying evidence does not demonstrate any of the criteria necessary for a higher evaluation prior to February 4, 2013. Specifically, there is no evidence of any episodes of acute respiratory failure, use of outpatient oxygen therapy, cor pulmonale, right ventricular hypertrophy, or pulmonary hypertension. The Veteran's concentric hypertrophy is shown to be consistent with hypertension-which the Veteran sought service connection for previously and which was denied in the April 2012 Board decision; there is no evidence of pulmonary hypertension. Moreover, the PFT findings since November 29, 2011 do not demonstrate any FEV-1, FEV-1/FVC, or DLCO (SB) findings which are less than 40 percent of the predicted value post-bronchodilator usage. The closest such value is 44 percent of predicted for the Veteran's DLCO (SB) test in September 2012; such value is not less than 40 percent of predicted. Likewise, the Board notes that there is no evidence of an exercise capacity less than 15 ml/kg in oxygen consumption. While no exercise testing was performed during the relevant period, there is no evidence supporting a finding that such an objective measurement of diminished exercise capacity existed during that period. The Augusta VA Medical Center is not capable of providing exercise testing. There is no evidence with regards to exercise capacity for the period of November 29, 2011 to February 3, 2013; ordering testing now is not required because (a) the Veteran has been awarded 100 percent; and (b) performance of an exercise test at the current time would not provide any useful information on which to evaluate the Veteran's exercise capacity which existed prior to February 3, 2013. As such, any further evidence obtained at this time would not further aid the Board in evaluating the Veteran's pulmonary condition with regards to the relevant period on appeal in this decision. In essence, the evidence does not demonstrate entitlement to an evaluation in excess of 60 percent during the period of November 29, 2011 to February 3, 2013. The PFT testing scores do not approximate the criteria for a higher evaluation during that period. Likewise, there is no evidence of any episodes of acute respiratory failure, use of outpatient oxygen therapy, cor pulmonale, right ventricular hypertrophy, pulmonary hypertension , or exercise capacity less than 15 ml/kg in oxygen consumption. Based on these findings, the Board must find that the criteria for a higher evaluation than current-assigned during the period of November 29, 2011 to February 3, 2013 have not been met on the evidence of record. Accordingly, the claim for an initial evaluation in excess of 60 percent for spindle cell carcinoma of the lung must be denied at this time. See 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6844. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2011). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. The service-connected disability has not required frequent hospitalization or resulted in marked industrial impairment. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected respiratory/pulmonary disorder, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Entitlement to TDIU VA will award a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2012). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2012). A TDIU for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability or one 40 percent disability, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a)(1). Currently, the Board notes that the Veteran is service-connected for his spindle cell carcinoma of the lung, 60 percent disabling prior to February 4, 2013 and 100 percent disabling thereafter; degenerative joint disease of the right hand, 10 percent disabling since April 21, 2006; tinnitus, 10 percent disabling since April 21, 2006; and, left ear hearing loss, noncompensable since April 21, 2006. Initially, the Board finds that the Veteran meets the schedular criteria for consideration for TDIU under 38 C.F.R. § 4.16(a), as his lung disability has been evaluated as 60 percent disabling since April 2006-the date of receipt of his original claim of service connection. In determining whether an appellant is entitled to a TDIU, neither the appellant's nonservice-connected disabilities nor advancing age be considered. Turning to the evidence of record, the Board notes that the Veteran's private doctor, Dr. H.L., noted in a May 2008 letter that the Veteran was not able to work. Dr. H.L. did reference his severe lung condition as a factor in that statement; however, he also noted that his severe lung condition "along with a number of other medical problems, including cardiac disease for which he has a pacemaker in place" rendered him unemployable. The Board notes that the single other specified condition, cardiac disease, is not service connected at this time. The Board does not know what "other medical problems" Dr. H.L. was referring to in his letter, however, his assessment with regards to unemployability took into account both service-connected and nonservice-connected disabilities alike. The Board therefore finds that his opinion that the Veteran is unemployable to be of very little probative value because the Board is unable to determine what role, if any, the Veteran's nonservice-connected disabilities played in Dr. H.L.'s determination with respect to employability. Unemployability determinations must be made without regard for nonservice-connected disabilities. The Veteran claims that he is unemployable and has stated that he was laid off because he was no longer able to perform his job duties at the Federal Law Enforcement Center-a job he held for over 18 years. While the Veteran is competent to claim that he is unable to work due, the Board does not find his claim to be convincing. He is seeking a TDIU and his claim would increase his monetary benefits. It is not a disinterested opinion. The Board finds the September 2012 examiner's opinion with respect to the Veteran's employability to be more objective and more convincing. In that opinion, the examiner noted that the Veteran would be unable to perform any physical work, but that his condition allowed for sedentary work of which 90 percent of his duties could be performed while sitting. The Veteran is shown to have been a security supervisor for 18 years prior to leaving that position in 1989. The Board notes that such job experience and education level, particularly management experience, would allow for the Veteran to obtain and maintain a sedentary position which would allow for gainful employment with the noted sitting restriction. On the basis of the September 2012 examiner's finding, the Board finds that the Veteran would not be precluded from obtain and maintaining substantially gainful employment, based on his job experience and education level, for the type of sedentary work restriction noted in that examination. Accordingly, the Board must deny entitlement to TDIU prior to February 4, 2012. See 38 C.F.R. §§ 4.7, 4.16. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An evaluation in excess of 60 percent for spindle cell carcinoma of the lung, for the period of November 29, 2011 to February 3, 2013, is denied. Entitlement to TDIU prior to February 4, 2013, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs