Citation Nr: 1323595 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 08-09 986A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a compensable initial rating for residuals of lung cancer, from May 1, 2004. REPRESENTATION Appellant represented by: Everett L. McKeown ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In February 2012, the Board remanded for additional development and due process concerns. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT From May 1, 2004, the level of impairment associated with the residuals of lung cancer is most accurately reflected in the FEV-1/FVC of 97 percent. CONCLUSION OF LAW The criteria for a compensable rating for residuals of lung cancer from May 1, 2004, are not met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 4,96, 4,97, Diagnostic Codes 6819, 6844 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Increased Rating In the January 2007 decision on appeal, service connection was established for residuals of lung cancer, status-post left lung lobectomy and partial resection, effective January 9, 2007. The Veteran was ultimately awarded a 100 percent rating from January 9, 2004, to April 30, 2004, under Diagnostic Code (DC) 6819, which rates malignant neoplasms of the respiratory system (exclusive of skin growths), and a noncompensable rating from May 1, 2004, forward under DC 6844, which rates post-surgical residuals. See September 2012 rating decision. The Veteran seeks a compensable rating from May 1, 2004, forward, contending that his residuals of lung cancer warrant a compensable rating based on functional, to include occupational, impairment due to decreased endurance and increased fatigue. 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. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. 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. 38 C.F.R. § 4.7. 38 C.F.R. § 4.14. In an appeal of an initial rating (such as in this case), consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will thus consider entitlement to "staged ratings." Post-surgical residuals are rated under the General Rating Formula for Restrictive Lung Disease (Formula). The Formula grants a 10 percent rating for a FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66 to 80 percent predicted and a 30 percent rating for a 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 Effective October 6, 2006, VA amended 38 C.F.R. § 4.96 to add provisions that clarify the use of pulmonary function tests (PFT's) in evaluating respiratory conditions. A new paragraph (d) to 38 C.F.R. § 4.96, entitled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845" includes a provision requiring PFT's to evaluate respiratory conditions except in certain situations. When there is a disparity between the results of different PFTs (FEV-1, FVC, etc.) so that the level of evaluation would differ depending on which test result in used, the test result that the examiner states most accurately reflects the level of disability is used. Furthermore, if the DLCO (SB) test is not of record, the disability should be evaluated based on alternative criteria as long as the examiner states why the test would not be useful or valid. In October 2003, the Veteran underwent a left thoracotomy and surgical exploration based on evidence of a left lung mass. The mass was determined to involve the left upper lobe, and a left upper lobectomy and resection were performed. The associated pathology reports suggest that the mass was due to a chronic inflammatory cavitary lesion and not malignancy. The surgery also revealed a carcinoid tumor in the left lower lobe. The carcinoid tumor was removed during a wedge biopsy; it did not require radiation or chemotherapy. A February 2004 private treatment record reflects the Veteran's history of doing "quite well," though he had "some dry cough" and wheezed intermittently. The record notes that PFTs showed slightly decreased FEV1 but a "pretty normal" ratio and normal diffusion capacity and lung capacity. The physician found that compared to the preoperative PFTs, the PFTS looked "pretty good except for slight decrease in the volumes." The physician diagnosed mild chronic obstructive pulmonary disease (COPD), carcinoid tumor status-post resection, and status-post left upper lobectomy and left lower lobe resection with mediatsinal biopsies consistent with typical carcinoid tumor, status-post removal. A June 2004 VA examination record reflects the Veteran's history of a new onset of wheezing and shortness of breath for the past few years, though worsened postoperatively. The Veteran reported that he was recovering "nicely" from the surgery, though he had mild discomfort over the surgical scar and was unable to maintain the endurance and energy level required in his old line of work and to perform heavy aerobic activity. Examination revealed a well-healed nontender, nonadherent scar. The record notes that the Veteran did not want to undergo PFTs or X-ray. The Veteran was diagnosed with left upper lobe chronic inflammatory cavitary mass, post resection, and left lower lobe carcinoid tumor without metastasis, post-resection. A September 2008 VA examination record reflects the Veteran's history of dyspnea on exertion with wheezing and chest tightness which was treated with Combivent PRN and maintenance inhalers. He explained that he could only walk a mile slowly before he must rest. The Veteran reported a past medical history of chronic obstructive pulmonary disease/asthma. Examination revealed a well-healed, nontender, and slightly adherent skin-colored scar extending from the left posterior scapular region to under the left axilla from the lobectomy. The Veteran was assessed with cured lung cancer, post-inflammatory lung abscess, and COPD due to past tobacco dependence. The repot notes that the Veteran did not report for PFTs. The record subsequently clarifies that the PFTs were scheduled but the Veteran failed to report. The examiner opined that none of the diagnoses limited the Veteran's ability to work in any way A July 2012 VA examination record reflects a finding of mild shortness of breath due to loss of lung volume from the pulmonary surgery. The examiner found that the Veteran did not have COPD and did not have an extensive smoking history. The record notes that the Veteran's respiratory condition required intermittent use of inhalational bronchodilator therapy. PFTs revealed a FEV-1 of 62 percent predicted and a FEV-1/FVC of 97 percent. DLCO was not performed because the Veteran did not have a diffusion problem. The examiner determined that the FEV-1/FVC test result most accurately reflected the Veteran's level of disability. The examiner also determined that the PFT results accurately reflected the Veteran's pulmonary function and that the respiratory condition did not impact the Veteran's ability to work. A compensable schedular rating is not warranted at any time from May 1, 2004, for the pulmonary residuals of lung cancer. The Board acknowledges that the February 2012 PFTs revealed a FEV-1 of 62 percent predicted, which corresponds to a 30 percent rating. Concurrent testing revealed a FEV-1/FVC of 97 percent, however, which corresponds to a noncompensable rating. As noted above, when the results of the tests would result in different evaluations depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is to be used. 38 C.F.R. § 4.96(d)(6). The 2012 VA examiner indicated that the result of the FEV-1/FVC test should be used. As such, the 2012 PFT results do not warrant a compensable schedular rating. The evidence does not otherwise suggest that a compensable rating is warranted; the 2012 PFT results are the only results of record. As such, the claim for a compensable schedular rating is denied. The Board has considered whether a compensable rating is warranted under an alternate diagnostic code but finds none is applicable as there is no evidence that the surgery associated with the pulmonary disability resulted in a scar that was tender on examination or unstable or that affects an area of at least 144 square inches. See 38 C.F.R. § 4.118 (2007). See also 73 Fed. Reg. 54,708 (Sept. 23, 2008). The Board has also considered whether extraschedular consideration is warranted based on the evidence of functional, to include occupational, impairment. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the residuals of lung cancer are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the predominant residual is shortness of breath due to loss of lung volume. The applicable rating criteria is based on the results of pulmonary function testing which consider loss of lung volume and the 2012 VA examine found the PFT results an accurate depiction of the Veteran's pulmonary function and that the residuals of lung cancer did not impair occupational functioning. The Board finds the effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule. 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). Finally, the Board has considered whether an inferred claim for a total rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran is no longer employed and that he has reported that he stopped working because of his pulmonary condition. The record indicates that a claim of entitlement to a TDIU was considered, but denied, in a January 2009 rating decision which was not appealed. Subsequent to that decision, the record does not include any new evidence, such as medical findings or noncumulative histories, to suggest unemployability due to the pulmonary disorder. Thus, Rice is inapplicable. Notice and Assistance Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 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. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to the Veteran's initial rating claim, predecisional letters dated in and January 2004 and March 2006 satisfied the duty to notify provisions. The Veteran is challenging the initial disability rating assigned following the grant of service connection for his service-connected disability. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. The duty to assist was also met in this case. The service treatment records are in the claims file. All pertinent VA treatment records have been obtained and associated with the file. The Board acknowledges that there are outstanding private treatment records, to include PFT results. The Veteran has been asked to submit these records or to consent to the release of these records to VA, most recently in a February 2012 letter, but has failed to respond. The Veteran is responsible for providing pertinent evidence in his possession. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. VA examinations were conducted in June 2004, September 2008, and February 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate as the examiners reviewed the record, provided an opinion as to the functional impairment associated with the residuals of lung cancer, and reported all available findings. The Board acknowledges that PFTs were not conducted in conjunction with the June 2004 and September 2008 VA examinations. The record clearly indicates that the PFTs were not conducted due to the Veteran's action, rather than fault on the part of VA, however. As such, the Board finds the absence of the PFTs does not render either examination inadequate. The Board further acknowledges that a DLCO was not conducted as part of the 2012 PFT. The examiner provided a reason for the failure to perform a DLCO test, however, and the Board finds the explanation is a satisfactory explanation which renders the examination adequate. See 38 C.F.R. § 4.96(d)(2). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Finally, the Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER A compensable rating from May 1, 2004, for residuals of lung cancer is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs