Citation Nr: 1319407 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 05-34 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a compensable initial evaluation for bronchogenic carcinoma, status post left upper lobectomy, prior to March 21, 2012. 2. Entitlement to an initial evaluation in excess of 60 percent for bronchogenic carcinoma, status post left upper lobectomy, from March 21, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from March 1983 until his retirement in April 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans (VA) Affairs Regional Office (RO) that granted service connection for bronchogenic carcinoma, status post left upper lobe lobectomy, and which assigned a 100 per cent evaluation for it effective May 1, 2005, and a noncompensable evaluation, effective September 1, 2005. The Veteran disagreed with the assigned rating. Based on the receipt of additional evidence, the RO, by rating action dated October 2012, assigned a 60 per cent evaluation, effective March 21, 2012. In AB v Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, where there is no clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service connected condition, the RO and the Board are required to consider entitlement to all available ratings for that condition. Since the maximum rating for bronchogenic carcinoma has not been assigned, the Board will consider the Veteran's claim for an increased rating. This case was previously before the Board in January and October 2012, and was remanded on each occasion for additional development of the record. As the requested action has been accomplished, the case is again before the Board for appellate consideration. In its October 2012 determination, the Board adjudicated claims for increased ratings for bilateral pes planus, chondromalacia of the left knee, degenerative joint disease of the right knee and environmental allergies. This decision, accordingly, is limited to the issue set forth on the preceding page. FINDINGS OF FACT 1. A pulmonary function test conducted on May 26, 2006, showed that forced expiratory volume-1/forced vital capacity was 78 percent. 2. From March 21, 2012, there is no evidence of cor pulmonale, pulmonary hypertension or right ventricular hypertrophy. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent evaluation for bronchogenic carcinoma have been met, effective May 26, 2006. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.96, 4.97, Diagnostic Codes 6819, 6844 (2012). 2. The criteria for an initial evaluation in excess of 60 percent for bronchogenic carcinoma, from March 21, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.96, 4.97, Diagnostic Codes 6819, 6844 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The duties to notify and assist were met in this case. The Board notes that by letters dated June and September 2008, the Veteran was advised of how the VA assigns a disability rating and an effective date, and the type of evidence which impacts such. VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include VA medical records and VA examination reports. VA clinical examinations have been obtained. 38 C.F.R. § 3.159(c)(4). The Board finds that the VA clinical examinations obtained in this case are more than adequate, as they are predicated on a full reading of the medical records in the Veteran's claims file. As appropriate, clinical findings pertinent to the schedular criteria for rating the disability at issue were obtained. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Analysis The Board has reviewed all the evidence in the appellant'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 appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each 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). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant 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); see also Hart v. Mansfield, 21 Vet. App 505 (2007). A 100 percent evaluation may be assigned for malignant neoplasms of any specified part of the respiratory system, exclusive ov skin growths. 38 C.F.R. § 4.97, Diagnostic Code 6819. A Note to Diagnostic Code 6819 instructs that the 100 percent rating shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Where there has been no local recurrence or metastasis, the disability is rated on residuals. Diagnostic Code 6844 provides for evaluations for post-surgical residual (lobectomy, pneumonectomy, etc) pursuant to the General Rating Formula for Restrictive Lung Disease (General Formula). The General Formula assigns a 10 percent evaluation when forced expiratory volume-1 of 71 to 80 percent predicted, or; forced expiratory volume-1/forced vital capacity of 71 to 80 percent, or; DLCO (SB) 66 to 80 percent predicted. A 30 percent disability rating is warranted where there is forced expiratory volume-1 of 56 to 70 percent predicted, or; forced expiratory volume-1/forced vital capacity of 56 to 70 percent, or; DLCO (SB) is 56 to 65 percent predicted. A 60 percent rating is warranted if forced expiratory volume-1 is 40 to 55 percent of predicted value, or; forced expiratory volume-1/forced vital capacity is 40 to 55 percent, or; DLCO (SB) is 40 to 55 percent predicted, or; maximum oxygen consumption is 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent disability rating is warranted if forced expiratory volume-1 is less than 40 percent of predicted value, or; forced expiratory volume-1/forced vital capacity is less than 40 percent, or; DLCO (SB) is less than 40-percent predicted, or; maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), 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; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6844. During the pendency of this appeal, the regulations pertaining to the evaluation of respiratory conditions were amended, effective October 6, 2006. See 71 Fed. Reg. 52457-52460 (2006) (presently codified at 38 C.F.R. § 4.96 (2012)). The change in the regulations did not alter any of the specific criteria listed in 38 C.F.R. § 4.97, Diagnostic Code 6844. Rather, the new regulations affected how the evaluation criteria are applied, including when a pulmonary function test is required to evaluate the disability, when to apply pre-bronchodilator values for rating purposes, and which pulmonary function test result to use (forced expiratory volume-1 versus forced expiratory volume-1/forced vital capacity versus DLCO (SB)) when the level of evaluation would differ depending on the test used. Specifically, the amended version of the regulations pertaining to respiratory conditions contain special provisions for the application of evaluation criteria for Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845, which are the following: (1) PFT's are required to evaluate these conditions except: (i) When the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less. If a maximum exercise capacity test is not of record, evaluate based on alternative criteria. (ii) When pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed. (iii) When there have been one or more episodes of acute respiratory failure. (iv) When outpatient oxygen therapy is required. (2) If the DLCO (SB) test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. (3) When the PFT's are not consistent with clinical findings, evaluate based on the PFT's unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. (4) Post-bronchodilator studies are required when PFT's are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies must not be done and states why. (5) When evaluating based on PFT's, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. (6) When there is a disparity between the results of different PFT's (FEV-1, FVC, etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. (7) If the forced expiratory volume-1 and the forced vital capacity are both greater than 100 percent, do not assign a compensable evaluation based on a decreased forced expiratory volume-1/forced vital capacity. 38 C.F.R. § 4.96. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). On VA general medical examination in February 2005, it was noted a lung nodule was identified on a chest X-ray during the Veteran's retirement examination. A CT scan resulted in a diagnosis of bronchogenic carcinoma, and this was confirmed by bronchoscopy. He was scheduled for a lobectomy in several days. It was noted the Veteran was asymptomatic on examination. Service department medical records show the lobectomy was performed in February 2005. The Veteran was afforded a VA respiratory examination in August 2005. It was noted he was not on oxygen therapy. He did not have cor pulmonale or pulmonary hypertension. A pulmonary function test revealed that forced expiratory volume-1 was 98 percent of predicted; forced expiratory volume-1/forced vital capacity was 84 percent; and DLCO was 95 percent of predicted. It was a normal spirometry. The diagnosis was bronchiogenic carcinoma of the left upper lung, status post surgical excision. On VA respiratory examination in June 2007, it was stated the Veteran was not under any treatment. Cor pulmonale, right ventricular hypertrophy and pulmonary hypertension were not present. The results of a pulmonary function test at a VA facility on May 26, 2006 were included with the examination report. That test revealed forced expiratory volume-1 was 100 percent of predicted, and forced expiratory volume-1/forced vital capacity was 78 percent. DLCO was 92 percent of predicted. This was reported to be a normal study. The diagnosis was well-differentiated carcinoid tumor of the lung, status post upper left lobectomy. The Veteran was most recently afforded a VA respiratory examination in February 2012. It was noted the Veteran did not require oxygen therapy for his condition. The diagnosis was lobectomy/carcinoid of the left upper lobe. The examiner commented the Veteran's respiratory condition did not impact his ability to work. It was also stated the Veteran had no symptoms, and a chest X-ray revealed there was no acute disease in the chest. A pulmonary function test was conducted at a VA facility on March 21, 2012. Post bronchodilator, forced expiratory volume-1 was 37 percent of predicted. Forced expiratory volume-1/forced vital capacity was 45 percent. The study was interpreted as revealing evidence of severe expiratory limitation. It was suggestive of a mixed obstructive and restrictive ventilatory defect. The issues before the Board are whether a compensable evaluation for bronchogenic carcinoma is warranted prior to March 21, 2012, and if a rating in excess of 60 percent is appropriate from that date. The Board notes the results of the pulmonary function tests conducted in August 2005 confirm that a noncompensable evaluation was warranted. However, as noted above, forced expiratory volume-1/forced vital capacity was 78 percent on the pulmonary function test on May 21, 2006. This clearly supports a 10 percent evaluation, but no higher, from that date. A 30 percent evaluation would require forced expiratory volume-1 of 56 to 70 percent of predicted or forced expiratory volume-1/forced vital capacity of 56 to 70 percent. It was not until the March 21, 2012 pulmonary function test that the findings supported a higher rating. The test results at that time are consistent with the 60 percent evaluation that was assigned. Since there is no indication of cor pulmonale, right ventricular hypertrophy or pulmonary hypertension, and the February 2012 VA examination demonstrated the Veteran did not receive oxygen therapy for his pulmonary condition, there is no basis on which a rating in excess of 60 percent is warranted. The Board concedes the Veteran is competent to report symptoms he experiences regarding his pulmonary disorder, and the Board finds him to be credible in this regard. The Veteran is not competent to provide an opinion requiring medical knowledge, or a clinical examination by a medical professional, such as an opinion addressing the severity of those symptoms or whether a service-connected disability satisfies specific rating criteria. As a result, his assertions cannot constitute competent medical evidence that bronchogenic carcinoma warrants a compensable rating prior to May 21, 2006, or that an evaluation higher than 60 percent is warranted from March 21, 2012. Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's bronchogenic carcinoma are contemplated by the applicable rating criteria. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Additional considerations In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, except as noted above, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Total Rating for Compensation Based on Individual Unemployability (TDIU) TDIU is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has not argued, and the record does not otherwise reflect, that his service-connected bronchogenic carcinoma has rendered him totally unemployable. Accordingly, consideration of TDIU is not before the Board. ORDER A10 percent evaluation for bronchogenic carcinoma is granted, effective May 26, 2006, subject to the governing law and regulations pertaining to the payment of monetary benefits. An evaluation in excess of 60 percent for bronchogenic carcinoma, from March 21, 2012, is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs