Citation Nr: 1323499 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 04-38 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for service-connected left lung spontaneous pneumothorax. 2. Entitlement to a finding of total disability based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from September 1954 to September 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the San Diego, California, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted an increased 30 percent evaluation for a left lung spontaneous pneumothorax. In January 2008 decision, the Board, in pertinent part, remanded the question of the appropriate evaluation for the pneumothorax to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. Subsequently, the Board sought medical opinions from a specialist in November 2010 and August 2011. In July 2012, the issues presently before the Board were again remanded for further development. The Veteran testified at an August 2007 hearing held before a Veterans Law Judge (VLJ) at the RO; a transcript of the hearing is of record. That VLJ had participated in all Board decisions regarding the claim for increased evaluation, as is required by law. 38 C.F.R. § 20.707. However, the Veteran was informed in April 2012 correspondence that the VLJ who presided at his hearing had been designated to serve as Acting Chairman of the Board. As such, he is no longer available to consider the appeal. The Veteran was offered the opportunity for a new Board hearing; he did not respond, and it is presumed that he does not desire a new hearing. The issue of entitlement to a finding of total disability based on individual unemployability (TDIU) due to service connected disabilities 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 Throughout the pendency of this claim, the Veteran's spontaneous pneumothorax has been manifested by FEV-1 (Forced Expiratory Volume in one second) of greater than 40-55 percent of predicted value, FEV-1/FVC (ratio of Forced Expiratory Volume in one second to Forced Vital Capacity) of 40 to 55 percent, and DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) between 40 and 55 percent of predicted value; or maximum oxygen consumption of 15 to 20 ml/kg in (with cardiorespiratory limit). CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for a spontaneous pneumothorax have not been met. See 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.96, 4.97, Diagnostic Code 6843 (2012). REASONS AND BASES FOR FINDING 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). The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed . Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has obtained service treatment records; VA treatment records; VA examination reports; assisted the Veteran in obtaining evidence; and, afforded him the opportunity to present statements and evidence. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. This matter was before the Board in July 2012, when the case was remanded to the RO via the Appeals Management Center (AMC), in Washington, D.C. The purpose of this remand was to obtain authorization to request private treatment records and to afford the Veteran a new VA examination. All of the actions previously sought by the Board through its prior development request appear to have been completed as directed. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). A supplemental statement of the case (SSOC) was issued in April 2013, which confirmed the previous denial. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Accordingly, the appellant is not prejudiced by a decision at this time. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2. While the Veteran's entire history is reviewed when making a disability determination, where service connection 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. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. In determining a disability evaluation, the VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record, and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's respiratory disorder has been evaluated under Diagnostic Code (DC) 6843, which pertains to the evaluation of pneumothorax and other traumatic chest wall defects. See 38 C.F.R. § 4.97. Evaluations under DC 6843 are based on the General Rating Formula for Restrictive Lung Disease (General Rating Formula). See id. Under the General Rating Formula: A 100 percent rating is assigned for an FEV-1 less than 40 percent of predicted value, or the ratio 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 the requirement for outpatient oxygen therapy. A 60 percent evaluation is assigned for an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or DLCO (SB) of 40 to 55 percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 30 percent rating is assigned for an FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56 to 65 percent predicted. A 100-percent rating shall be assigned for pleurisy with emphysema, with or without pleurocutaneous fistula, until resolved. Id., Note (1). Following episodes of total spontaneous pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall continue for three months from the first day of the month after discharge. Id., Note (2). In evaluating certain respiratory disorders, including the one at issue, pulmonary function tests are required, except in the following circumstances: (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 is 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. 38 C.F.R. § 4.96(d)(1). (Emphasis added). Post-bronchodilator results are required when pulmonary function tests 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 should not be done and states why. See 38 C.F.R. § 4.96(d)(4). In applying the rating criteria, post-bronchodilator results are to be used unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre- bronchodilator values should be used for rating purposes. 38 C.F.R. § 4.96(d)(5). Factual Background and Analysis The Veteran was initially granted service connection for a collapsed lung in February 1957. In July 2003, he sought an increased rating and, in a September 2003 rating decision, the Veteran's disability rating for spontaneous pneumothorax was increased from non compensable to 30 percent, effective July 14, 2003. The Veteran contends that his symptoms warrant a disability rating in excess of 30 percent. In September 2003, the Veteran presented for VA contract (QTC) examination. The Veteran stated that he had his first pneumothorax in 1954 and that he had had spontaneous pneumothoraxes ever since, totaling approximately thirty since the initial occurrence. He described them as severe and caused a "crushing onset of chest pain." He stated that he had been treated for this at the hospital between five and six times. He described the episodes as lasting for days at a time and stated that he treated himself at home with bed rest. He stated that he had lost approximately one year of work due to problems with pneumothoraxes. Diagnostic testing demonstrated an FVC of 81 percent and FEV1 of 58 percent; the examiner stated that pulmonary function test demonstrated moderate obstructive defect. It was further noted that post-dilated PFT was not performed secondary to the fact that this was clinically contraindicated due to the Veteran's shortness of breath and dizziness. In his October 2003 notice of disagreement, the Veteran explained that from 1954 onward his pneumothorax had come and gone at least 25 times. In an August 2004 QTC examination, lungs demonstrated some mild decrease in breath sounds, greater in the left than right lung. Expiratory phase was within normal limits. On views of the chest, there was no active pulmonary disease seen. PFTs were not performed secondary to medical contraindication. In an addendum to the August 2004 examination report, the examiner stated that PFT was not performed secondary to medical contraindication as testing increased risk for pneumothorax. The examiner noted that the Veteran had had approximately 20 pneumothoraxes since 1954, was last hospitalized sixteen years prior for pneumothorax and that his last episode occurred a year prior. The examiner noted that the Veteran had a mild decrease in breath sounds in the left greater than the right lung base. In a further addendum to his report, the examiner noted that there was a high risk of recurrence of pneumothorax and that PFTs should be conducted in a hospital setting. The examiner noted that there was no evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension or chronic respiratory failure with carbon dioxide retention resulting from his pulmonary disease. A December 2004 private treatment note from Dr. T.Y. noted that the Veteran presented with shortness of breath and was found to be in significant congestive heart failure. An October 2005 VA treatment record demonstrates that the Veteran smoked a pack of cigarettes per day and quit smoking in 1985. Other VA medical center treatment records demonstrate that he reported himself as a "lifetime non-smoker." In August 2007, the Veteran testified before a Veterans Law Judge at a travel Board hearing. The Veteran testified that his condition was getting worse with age and that he was unable to do anything for a length of time. He explained that he could walk for at most five minutes and then would become tired and out of breath. He explained that his doctor had told him that PFTs would cause him harm. He stated that he took approximately five days of work off a year due to his symptoms. The Veteran stated that the last time he had a collapsed lung was around 2004. He explained that he did not seek treatment at that time. The Veteran explained that while he had seen doctors for heart problems he did not seek treatment for his pneumothorax. In an October 2007 statement, the Veteran explained that his lung had collapsed at least twenty times in the past fifty years and that since he was told to rest when this happened he had to take time off using sick and vacation days until he was ready to return to work. In a March 2008 letter from private physician Dr. D.S., he noted that he had advised the Veteran not to undergo pulmonary function testing because of his past medical history and that this opinion was in agreement with other physicians who had examined him and who were familiar with his wishes. In an April 2008 letter, the Veteran stated that he had spoken to several doctors and he knew that taking a PFT in a hospital or elsewhere "would be like attempting suicide" as it was medically contraindicated. A note in the Veteran's claims file reports that the Veteran failed to report to a May 1, 2008 VA examination. A May 2008 report of contact note and fax correspondence noted that the Veteran could not do breathing testing and that his file should be decided on the available evidence. In a July 2008 statement, the Veteran noted that his August 2004 examiner stated that he was at a high risk of recurrence of pneumothorax on PFT. He explained that because he had many sick and vacation days, and because his pneumothorax would only last between two and three days, he did not mention it at work. In January 2011, the Veteran explained that he never had a smoking habit, that he would stop and start at will and that he had not smoked a cigarette in over thirty years. In November 2010, in response to the Board's request for an independent medical opinion, a private physician reviewed the Veteran's claim file and noted that the Veteran's smoking status was unclear and that it was unclear in 2004 and later (following the Veteran's only PFT) what spirometry would show given the Veteran's inability to perform PFT and that such testing may be moot since the Veteran had developed left ventricular failure which could affect spirometry. The physician also noted that there was no mention of right ventricle or estimated pulmonary artery pressure and that, even if there had been evidence of pulmonary hypertension, this could easily have been attributed to left ventricular failure and mitral regurgitation which was shown to be moderate in severity. The physician noted that the Veteran also had atrial fibrillation and hypertension by history. In August 2011, the Board again requested an independent medical opinion from a specialist in order to determine the severity of the Veteran's spontaneous pneumothorax. In the independent medical opinion, the examiner noted that it was difficult to say whether the Veteran's September 2003 examination demonstrated restrictive or obstructive disease. He stated that reviewing spirometry PFTs forced vital capacity was 81 percent of predicted and FEV1 to FVCC ratio was greater than 56.7 percent which was consistent with obstructive disease as patients with restrictive disease typically had a reduced FVC to less than 80 percent but also had a ratio of FEV1 to FVC that is greater than 80 percent predicted. The examiner stated that the 2003 chest exam was consistent with chronic obstructive pulmonary disease and there was no mention of any pleural thickening or changes one usually saw with restrictive disease caused by pneumothorax or even interstitial lung disease. The examiner noted that there was no total lung capacity measured and that FVC was used instead, which was not ideal. The examiner stated that in 2003, based on the evidence available, the Veteran had no restrictive disease and simple obstructive disease probably related to cigarette smoking based on spirometry and chest x-ray findings. The examiner said that, regarding 2004 VA examination findings, if the Veteran had stopped smoking his lung function would have proceeded upon a normal course and more rapid declines in lung function would not have been expected unless he continued to smoke. He stated that the Veteran believed his last pneumothorax was in 2004. It was noted that Dr. T.W. indicated that the Veteran had severe dilated cardiomyopathy, congestive heart failure and chronic atrial fibrillation after presenting with progressive shortness of breath. He stated therefore that his disability would have remained at category two dependant on whether he smoked at that point and that since he stopped smoking at that time his FEV 1 would have decreased and would not be much different from 2003. The examiner noted that no diffusing capacity was done and no spirometry was done, so this was speculation. The examiner noted that spirometry results could be influenced by the presence of left heart failure and that one could have either restrictive or obstructive disease manifest on spirometry in the presence of congestive left ventrical failure but that smoking cessation can improve the FEV1. He stated again that, based upon the spirometry provided and the 2003 x-ray, he could not say that there was restrictive disease present in 2003. The physician stated that if the Veteran's left ventricular failure was well controlled then the effect on spirometry would be minimal, but if he had congestive heart failure at that time it could manifest as a restrictive or obstructive defect. The examiner stated that he could not quantify the degree that spirometry may have been affected after 2004 by heart failure since he did not know what the status of the patient was. He stated that the x-ray from August 2004 indicates that he was not in heart failure at that time but that this was before his visit to Dr. T.Y. who found heart failure. In an August 2012 VA examination, the Veteran stated that he had approximately 20 spontaneous pneumothoraxes since 1956 for which he did not seek medical attention, the Veteran reported that he had not had a pneumothorax for over thirteen years. On examination, it was noted that findings on a June 2012 x-ray were normal. Pulmonary function testing was not performed. The examiner reported that the Veteran did not have a maximum exercise capacity test of 20 ml/kg/min or less; pulmonary hypertension, cor pulmonale, right ventricular hypertrophy, one or more episodes of acute respiratory failure, nor did he require oxygen therapy. The examiner noted that the only medically diagnosed spontaneous pneumothorax of record occurred when the Veteran was nineteen years old; that currently breath sounds were clear; and that the Veteran had no complaints of pain or shortness of breath. The examiner stated that the Veteran was being treated for atrial fibrillation and congestive heart failure and that complaints of tiredness were common for both. The Veteran did not report signs or symptoms for active lung disease. The examiner stated that, based on physical examination and the Veteran's history, there was no reason to believe that PFT was absolutely contraindicated in the Veteran. The examiner explained that, in the medical opinion of August 2004, the physician suggested that pulmonary function testing should not occur in a clinic setting because of the possible risk of spontaneous pneumothorax but that current literature opined that the only absolute contraindications for pulmonary function testing were for patients in isolation, an inability to sit up, acute disease, chest pain or severe cardiac conditions, or recent thoracic or abdominal surgical procedures. The examiner stated that there was no way to estimate PFT levels without testing but it appeared that the Veteran was at low risk for active lung disease. Analysis The Veteran does not meet the criteria for a higher, 60 percent, disability rating for spontaneous pneumothorax. The Veteran's FEV1 is not between 40 to 55 percent predicted; FEV1/FVC is not 40 to 50 percent; DLCO is not 40 to 55 percent predicted; and maximum oxygen consumption is not 15 to 20 mk/kg. The Veteran has not undergone pulmonary function testing since September 2003. He asserts that he would be harmed by taking such a test. As noted above, Dr. DLS, his private doctor, stated that he did advise the Veteran not to undergo a PFT "because of his past medical history" and the Veteran's August 2004 VA examiner stated that the test should be performed in a hospital setting. Thus, a single doctor is shown to have recommended that the Veteran forego PFT testing. Contrastingly, the Veteran's August 2012 VA examiner specifically noted that based on physical examination and the Veteran's history, there was no reason to believe that PFT was absolutely contraindicated in the Veteran. As a lay person, the Veteran is competent to report on that which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Thus the Veteran is competent to describe symptoms which he believes are due to pneumothorax. The Veteran, however, is not shown to have the medical expertise to testify as to the severity of the residuals of his pneumothorax, diagnostic testing is necessary for such a finding. The Veteran also lacks the expertise to determine whether specific testing is contraindicated. Speaking to the issue of contraindication of PFT testing, the majority of the evidence suggests that, in an appropriate medical environment, testing is not absolutely contraindicated. However the Veteran has refused on multiple occasions to undergo PFT testing. As the Veteran refused to undergo further testing, the Board must decide the claim based on the only evidence available; the testing performed in 2003, which does not meet the criteria for a higher disability evaluation. Supporting this conclusion is an August 2011independent medical opinion which noted that, if the Veteran had stopped smoking his lung function would have proceeded upon a normal course and that more rapid declines in lung function would not have been expected unless he continued to smoke. The Veteran has stated on multiple occasions that he stopped smoking in the 1980s. Therefore it stands to reason that his lung function has not altered since 2003. The preponderance of the evidence is against the claim for an increased rating for spontaneous pneumothorax, there is no doubt to be resolved; and an increased rating is not warranted. The evidence shows that the Veteran's service-connected spontaneous pneumothorax results in chest pain and some decreased breathing capacity; the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms as well as symptoms more severe than those demonstrated by the evidence of record. Moreover, the question of the Veteran's employability is considered below. The Veteran's disability picture is contemplated by the rating schedule, the assigned evaluation for the service-connected spontaneous pneumothorax disability is adequate, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an evaluation in excess of 30 percent for service-connected left lung spontaneous pneumothorax is denied. REMAND The evidence demonstrates that the Veteran retired from work in 1991. See October 2003 Statement. He asserts that he would have continued to work but was unable to do so secondary to his pneumothorax symptoms. In August 2008, a VA examiner opined that the Veteran's unemployability is more likely due to his non-service connected cardiac conditions as opposed to "one diagnosed occurrence of spontaneous pneumothorax of unknown etiology in a patient with no ongoing symptoms or history of lung disease." The VA examiner improperly dismissed the Veteran's lay statements that he had several pneumothoraxes since service. Buchanan v. Nicholson, 451 F.3d 1331, 1335. Moreover, the examiner did not provide any rationale for her findings that cardiac conditions were responsible for the Veteran's unemployability or whether a distinction could be made between his service-connected spontaneous pneumothorax and his cardiac disorders. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). If, as here, VA examinations are inadequate, the Board's only recourse is to remand the case. Thus, the Board finds that additional VA examination is required before the claim may be adjudicated on the merits. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) (West 2002) and 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to assess the Veteran's employability. The examiner must indicate the impact the Veteran's spontaneous pneumothorax, and only that disability, have on his ability to secure or follow a substantially gainful occupation. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Review the claim file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs