Citation Nr: 1321093 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 12-17 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased disability rating in excess of 30 percent for non-small cell lung cancer (NSCLC), status post right upper lobe lobectomy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from June 1951 to May 1955. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2011 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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). FINDING OF FACT The Veteran's service-connected non-small cell lung cancer manifests in, at worst, pre-bronchodilator FEV-1 of 64 percent predicted value and FEV-1/FVC of 84 percent actual, post-bronchodilator FEV-1 of 68.7 percent predicted value and FEV-1/FVC of 76 percent actual, and a DLCO-SB of 74.4 percent predicted value. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 30 percent for non-small cell lung cancer, status post right upper lobe lobectomy, have not been met for any period at this time. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.96, 4.97, Diagnostic Code 6844 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In this case, the Veteran's service-connected NSCLC has been rated under Diagnostic Code 6844. 38 C.F.R. § 4.97. Diagnostic Codes 6840-6845 are evaluated under criteria for evaluation of restrictive lung disease. 38 C.F.R. § 4.97. A 10 percent rating requires a forced expiratory volume in one second (FEV-1) of 71 to 80 percent predicted, or ratio of FEV-1 to forced vital capacity (FEV-1/FVC) of 71 to 80 percent, or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted. Id. A 30 percent rating requires a 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. Id. Important for this case, a 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). Id. A 100 percent evaluation is warranted where testing reveals FEV-1 of less than 40 percent of predicted value; or the ration of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent; or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40 percent predicted; or maximum exercise capacity 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. VA amended the Rating Schedule concerning respiratory conditions effective from October 6, 2006. VA added provisions that clarify the use of pulmonary function tests (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, which state: (1) PFTs are required to evaluate respiratory 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, evaluation should be 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, evaluation should be based on alternative criteria as long as the examiner states why the DLCO (SB) test would not be useful or valid in a particular case. (3) When the PFTs are not consistent with clinical findings, evaluation should be based on the PFTs 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 PFTs are done 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 why. (5) When evaluating based on PFTs, post-bronchodilator results are to be used unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, the pre- bronchodilator values should be used for rating purposes. (6) When the results of different PFTs (FEV-1, FVC, etc.) are disparate (so that the level of evaluation would differ depending on which test result is used), the test result that the examiner states most accurately reflects the level of disability should be used for evaluation. (7) If the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV- 1/FVC ratio should not be assigned. 38 C.F.R. § 4.96(d). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). As is the case here, where entitlement to compensation has already been established and 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all 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 a 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Veteran is in receipt of a 30 percent disability rating for NSCLC for the entire rating period on appeal. He filed a claim for an increased rating in December 2010. He avers that he is having more frequent shortness of breath, more weakness, and more oxygen depletion, and that these symptoms warrant a disability rating in excess of 30 percent. VA treatment records from March 2010 indicate that the Veteran reported that he was not as active as he would like to be because he did not have the stamina. He reported ongoing chronic dyspnea on exertion which was unchanged. A chest x-ray study showed right apical pleural thickening and small right lung volume with tracheal shift that had been stable over three years. The radiologist noted that these findings were consistent with parenchymal and pleural scar secondary to the Veteran's known right upper lobectomy and radiation therapy. Further, there was no significant new finding sine the prior study of 2007, and no evidence of acute cardiopulmonary process. In June 2010, examination of the chest showed clear lungs and it was noted that the Veteran was doing well. In September 2010, the Veteran reported that he had tickets to a football game later that month but did not think he could walk the distance to the stadium due to chronic dyspnea on exertion. A chest x-ray showed no change when compared to the March 2010 study. Thus, no additional treatment or follow-up was deemed necessary. In January 2011, physical examination revealed the lungs were clear and resonant, and the Veteran had good breath sounds, providing some evidence against this claim. A March 2011 VA treatment note indicates the Veteran reported ongoing dyspnea on exertion, although the clinician noted he was able to walk from the parking lot to the clinician's office without issues. There was no evidence of disease recurrence, and he was discharged from the oncology clinic. The Veteran was afforded a VA examination in March 2011. He reported dyspnea on moderate exertion. He denied cough, wheezing, chest pain, hemotysis, fever, respiratory failure, cor pulmonale, pulmonary hypertension, chronic pulmonary mycosis, sleep apnea, spontaneous pneumothorax, asthma, bronchiectasis, pulmonary embolism, or pleurisy with emphysema. He further denied orthopnea, paroxysmal nocturnal dyspnea, and swelling. On physical examination, there was no evidence of congestive heart failure, pulmonary hypertension, or abnormal breath sounds. A chest x-ray showed a status post right upper lobectomy with stable post surgical changes, and no significant change when compared to the prior study. A pulmonary function test (PFT) revealed FEV-1 of 64 percent predicted (pre-bronchodilator) and FEV-1/FVC of 84 percent actual (pre-bronchodilator). PFT results also showed an FEV-1 of 68.7 percent predicted (post-bronchodilator), FEV-1/FVC of 76 percent actual (post-bronchodilator), and DLSO-SB of 74.4 percent predicted. The VA examiner concluded that the Veteran's NSCLC would have effects on the Veteran's daily activities with regard to the dyspnea on moderate exertion. VA treatment notes from June 2012 indicate the lungs were clear and resonant and breath sounds were good. Chest x-rays from June 2012 and February 2013 reveal no changes from prior studies. Based on the foregoing, even taking the Veteran's complaints of dyspnea on exertion into account, the Board finds that the weight of the evidence is against a grant of a higher 60 percent evaluation for NSCLC. Specifically, the minimum criteria of a FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, DLCO (SB) of 40 to 55 percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit) for a 60 percent evaluation under Diagnostic Code 6844 are not met. 38 C.F.R. § 4.97. In this case, the pre-bronchodilator results of FEV-1 of 64 percent predicted and FEV-1/FVC of 84 percent actual are well within the range of criteria for the currently assigned 30 percent rating. Indeed, the FEV-1/FVC of 84 percent does not even meet the criteria for a compensable evaluation, and the DLCO-SB of 74.4 percent falls within the range of criteria for a 10 percent disability evaluation. Id. The overwhelming preponderance of the evidence demonstrates that the Veteran's disability picture is adequately reflected by the currently assigned 30 percent disability rating. Indeed, it is important for Veteran to also understand that without some problems associated with his lungs there would be no basis for the current 30 percent disability rating. In this regard, as stated above, it is important to note that the March 2011 PFT results (with the exception of the FEV1 predicted readings) would not even meet the requirements of a 30 percent evaluation, let alone a higher evaluation. Without consideration of the problems he has cited and the dyspnea on exertion he experiences at this time, the current evaluation could not be justified. The problems he has cited are the basis for the current evaluation as the objective medical evidence would, to some degree, provide evidence against the current evaluation, let alone a higher evaluation. The Board has considered whether other applicable diagnostic codes would warrant a higher evaluation for his service-connected NSCLC. However, there are no other applicable diagnostic codes. The Board has also considered the Veteran's statements that his disability is worse than currently evaluated (in this regard, it is important for the Veteran to understand that a 30 percent evaluation is a significant disability evaluation, indicating very generally a 30 percent reduction in industrial adaptability). The Veteran is competent to report symptoms, such as shortness of breath, as this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which this disability is evaluated. For these reasons, the Board finds that the weight of the evidence is against a finding of an increased evaluation in excess of 30 percent for NSCLC for any period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's NSCLC. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Veteran's NSCLC has manifested in dyspnea on exertion, but a normal spirometry. The schedular criteria for rating the respiratory disability (38 C.F.R. § 4.97, Diagnostic Code 6844) specifically provide for ratings based on the results of PFTs and other respiratory complaints. In this case, comparing the Veteran's disability level and symptomatology of the lungs to the rating schedule, the degree of disability of the lungs throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the NSCLC, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In a timely January 2011 letter, the Veteran was informed of the requirements needed to establish an increased evaluation for NSCLC. The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. In accordance with the requirements of VCAA, the VA letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording a VA examination. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, a VA examination report, and the Veteran's statements. The Veteran has been afforded an adequate examination on the issue of an increased rating for service-connected NSCLC. VA provided the Veteran with an examination in March 2011. The Veteran's history was taken, and a complete examination with clinical measures was conducted, to include a PFT. Conclusions reached and diagnoses given were consistent with the examination report. For these reasons, the Board finds that the Veteran has been afforded an adequate examination on the issue of an increased rating for service-connected NSCLC. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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). ORDER A disability rating in excess of 30 percent for non-small cell lung cancer, status post right upper lobe lobectomy, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs