Citation Nr: 1325488 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 04-17 138 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to a rating in excess of 40 percent for residuals of a penetrating shell fragment wound to the right posterior chest and upper abdomen, for the purpose of accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran had active military service from May 1943 to August 1945. This matter comes before the Board of Veterans' Appeals (Board) from a March 2003 rating decision, in which the RO, in part, denied a disability rating in excess of 40 percent for residuals of a penetrating shell fragment wound to the right posterior chest and upper abdomen. The Veteran filed a notice of disagreement (NOD) in March 2003, and the RO issued a statement of the case (SOC) in April 2004. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in April 2004. In November 2006, the Board remanded to the RO (via the Appeals Management Center (AMC) in Washington, DC) the Veteran's claim for a disability rating in excess of 40 percent for residuals of a penetrating shell fragment wound to the right posterior chest and upper abdomen. After accomplishing some action, the AMC continued to deny the claim (as reflected in a March 2009 supplemental SOC (SSOC)), and returned this matter to the Board for further appellate consideration. In May 2009, the Board again remanded the Veteran's claim to the RO, via the AMC, for further action, to include additional development of the evidence. After completing the requested development, the AMC denied a rating in excess of 40 percent for the Veteran's residuals of a penetrating shell fragment wound to the right posterior chest and upper abdomen (as reflected in an October 2009 SSOC) and returned the matter to the Board for further consideration. The Veteran died on October [redacted], 2009. In December 2009, the Veteran's surviving spouse filed a timely claim for accrued benefits. In December 2009, without awareness of the death, the Board denied a rating in excess of 40 percent for the Veteran's residuals of a penetrating shell fragment wound to the right posterior chest and upper abdomen in December 2009. After receiving notice of the Veteran's death, in November 2012, the Board vacated the December 2009 decision and remanded the claim to the RO, via the AMC, to determine whether the Veteran's surviving spouse was eligible for substitution, and, if so, to readjudicate the claim. In January 2013, the RO granted substitution of the surviving spouse as appellant for the purpose of continuing the appeal, but denied a rating in excess of 40 percent for the Veteran's residuals of a penetrating shell fragment wound to the right posterior chest and upper abdomen, for purposes of accrued benefits (as reflected in an January 2013 SSOC), and returned the matter to the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Prior to March 1, 2009, the Veteran's service-connected residuals of a penetrating shell fragment wound to the right posterior chest and upper abdomen is manifested by, at its worst, a post-dilator Forced Expiratory Volume in One Second (FEV-1) measurement of 70 percent predicted, a ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) measurement of 67 percent, and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO(SB)) of 74 percent predicted. 3. From March 1, 2009 to the date of the Veteran's death in October 2009, there is persuasive evidence of outpatient oxygen therapy attributable at least in part to the Veteran's residuals of a penetrating shell fragment wound to the right posterior chest and upper abdomen. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for residuals of a penetrating shell fragment wound to the right posterior chest and upper abdomen, for accrued benefits purposes, prior to March 1, 2009, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.951, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6843 (2012). 2. Resolving all reasonable doubt in the appellant's favor, from March 1, 2009, the criteria for a 100 percent rating for residuals of a penetrating shell fragment wound to the right posterior chest and upper abdomen, for accrued benefits purposes, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.951, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6843 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In an October 2002 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for an increased rating for service-connected residuals of a penetrating shell fragment wound to the right posterior chest and upper abdomen, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The March 2003 RO rating decision reflects the initial adjudication of the claim after issuance of the October 2002 letter. In response to the Board's November 2006 remand instructions, the AMC provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the November 2006 letter, and opportunity for the Veteran to respond, the March 2009 supplemental SOC (SSOC) reflects readjudication of the claim. The AMC provided additional adequate notice in May 2009. Hence, there is no prejudice to the Veteran (or the appellant) by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, letters with medical opinions from private physicians, and the reports of February 2003 and May 2007 VA examinations and a February 2011 VA medical opinion. With the exception of performance of a maximum exercise oxygen consumption test (addressed below), the Board has determined that the reports of VA examination-along with the medical opinion obtained-are adequate for evaluation of the disability under consideration, as they reflect review of the Veteran's history as well as relevant clinical testing, and include appropriate examination findings applicable to the rating criteria. Also of record and considered in connection with the claim are various written statements provided by the late Veteran, as well as by his wife, his daughters, and representative. The Board finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required. In a May 2009 remand, the Board directed the RO to schedule the Veteran for a VA examination to include all tests addressed in the rating criteria. However, in a September 2009 letter, the Veteran's representative indicated that, due to progressive age and debilitating medical illness, the Veteran would be unable to perform a pulmonary function test. A separate email and notation dated in September 2009 indicated that the Veteran's wife informed the RO that the Veteran was in a nursing home and would be unable to report for an examination. An Advanced Practice Registered Nurse had examined the Veteran and determined that he was ill and would not be able to undergo examination. Thus, the Board finds that the RO has complied with the directives outlined in the May 2009 remand, to the extent possible. See D'Aries Peake, 22 Vet. App. 97, 105 (2008), citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance under Stegall v. West, 11 Vet. App. 268 (1998). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claims decided herein, the avenues through which he might obtain relevant evidence, and the Veteran's and VA's respective responsibilities obtaining relevant evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any of these claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of any of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran served as a U.S. Army infantryman and machine gunner including combat service in Europe. He sustained multiple shell fragment wounds including to the right posterior chest and upper abdomen in combat in the Battle of the Bulge in 1945. Residuals of the wounds included chronic empyema of the right chest with pleural thickening and dyspnea on exertion. In his September 2002 claim, the Veteran contended that the residuals had become more severe than were contemplated by the current rating. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Historically, in an October 1945 rating decision, the RO assigned a 100 percent disability evaluation to the Veteran's service-connected disabilities, which included empyema, right chest, secondary to wounds, penetrating, posterior and upper abdomen. In an October 1946 rating decision, the RO assigned a 60 percent rating for the Veteran's residuals of shell fragment wound, penetrating, right posterior chest and upper abdomen, with secondary empyema, thoracostomy, and pleural adhesions, right. In a July 1957 rating decision, the RO reduced the Veteran's disability evaluation for residuals of shell fragment wound penetrating right posterior chest and upper abdomen to 40 percent, effective October 1, 1957. This rating was assigned under rating criteria that are no longer in effect. Since the 40 percent rating was in effect for more than 20 years, a rating of 40 percent is protected, by law, against reduction. See 38 C.F.R. § 3.951 (2009). The Veteran filed the claim for increase that is the subject of current appeal in November 2002. The Veteran's disability has more recently been rated under the criteria of 38 C.F.R. § 4.97, Diagnostic Code 6843, for traumatic chest wall defect, pneumothorax, hernia, etc. Under DC 6843, a 60 percent disabling rating is assigned for 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 100 percent rating is assigned for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; 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. When evaluating based on a pulmonary function test (PFT), the Board is to 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. 38 C.F.R. § 4.97(d)(5). In February 2003, the Veteran underwent VA examination. He reported getting winded easily when walking short distances. He denied chest pain or shortness of breath at rest, orthopnea, paroxysmal nocturnal dyspnea, and edema. The examiner noted a recent negative cardiac stress test. The Veteran also had chronic obstructive pulmonary disease and had smoked for many years. He denied sputum hemoptysis, oxygen therapy, fevers, weight loss, night sweats, and daytime hypersomnolence. On examination, the Veteran's lungs were clear. The examination report referenced a pulmonary function test (PFT) done that month that showed FEV-1/FVC was 66 percent with combined obstructive and restrictive ventilatory defects with a slight reduction from the 68 percent noted in 1999. However, this assessment was based on pre-dilator values. Following the use of a bronchodilator, FEV-1 was 80 percent of predicted, and FEV-1/FVC was 78 percent. DLCO(SB) was 74 percent of predicted. The assessment was that the Veteran had significant subjective dyspnea. The PFT showed some worsening of function considering only the pre-bronchodilator values. The Veteran used inhalers but no oxygen. The examiner noted that in view of the negative stress test, the reduction in function was not due to cardiac dysfunction but rather due to combined effects of smoking and scarring from the war injury. In a June 2003 letter, a private family physician noted that the Veteran had a permanently paralyzed right hemidiaphragm. He had scarring of the right pleural space from the empyema and subsequent chronic drain, as well as scarring of the chest wall. He had chronic dyspnea on exertion, which worsened as he aged. On examination, the Veteran had prominent scarring of the right flank and posterior hemithorax. He had decreased breath sounds at the right base compared to the left. The physician reported that spirometry testing in January 2002 revealed that FEV-1 was 57 percent of predicted. A copy of the test data sheet was requested by the RO and submitted by the Veteran. The test was performed in April 1999 and showed post-dilator results of FEV-1 of 75 percent of predicted and FEV-1/FVC of 69 percent. In April 2004, the Veteran reported that he had trouble breathing when walking to his mailbox, that X-rays showed two shrunken right lung lobes, that he experienced very little expansion of his right chest wall on breathing, and that had the PFT test been performed after walking up stairs, the results would have been very different. In February 2005, the Veteran reported that he had difficulty working as a quality control supervisor walking through the facility to the site of inspections. In an October 2005 report, the Veteran's private cardiologist noted that the Veteran's dyspnea was caused by both underlying coronary artery disease and pulmonary disease. In November 2006, the Board remanded the claim, in part ,to afford the Veteran the opportunity to identify or submit additional evidence and to provide another VA pulmonary examination. The Board instructed that the examination must include a pulmonary function test with FEV-1, FEV-1/FVC, DCLO (SB), and maximum oxygen consumption findings as well as whether the Veteran has cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure, or the need for outpatient oxygen therapy. In May 2007, the Veteran underwent VA examination. The examining physician noted that the claims file was reviewed including the letter from the private family physician. The Veteran experienced shortness of breath with minimal activity, including walking distances of twenty feet. The Veteran used a bronchodilator with improvement. He did not require treatment with oxygen. His wife indicated that the Veteran could not sustain any significant physical activity as a result of dyspnea. On examination, there were no signs of respiratory distress. The right posterior chest had reduced breath sounds at the base consistent with an elevated right hemidiaphragm. The right lung had reduced right lung inspiration and expiration and associated reduced excursion. There were no wheezes, rales, or rhonchi. There was no indication of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or outpatient oxygen therapy. The Veteran's weight appeared to be stable. The examination was consistent with right diaphragm paralysis and associated decreased right lung inflation and deflation. Chest x-rays were taken. Inspiratory and expiratory views demonstrated poor right diaphragm function with significantly reduced right lung inflation and deflation. A PFT revealed that, after the use of a bronchodilator, FEV-1 was 70 percent of predicted, and FEV-1/FVC was 67 percent. DLCO (SB) was 74 percent of predicted. The interpretation was that there were combined obstructive and restrictive ventilatory defects. There was significant improvement following the use of a bronchodilator. There was mildly reduced diffusing capacity. The physician noted that the respiratory performance was the result of the service-connected injury and the non-service-connected smoking but he did not indicate relative proportional effects. The physician noted that maximum oxygen consumption could not be performed because there was a lack of proper testing equipment at the testing facility. It was also noted that the test would be technically difficult to perform as a result of the Veteran's heart disease and dementia. The examiner opined that it was likely that, if the test was performed, the Veteran would demonstrate decreased respiratory ventilation with activity, with an associated decrease in oxygen levels and maximum oxygen consumption, and elevation of carbon dioxide levels. The actual levels could not be estimated. The diagnosis was traumatic right lung injury during active service resulting in right diaphragm paralysis and right lung pleural thickening and calcification, with associated decreased right lung function, resulting in symptoms of shortness of breath and restrictive changes on pulmonary function testing. The examiner noted that the Veteran also had obstructive lung disease that was likely secondary to cigarette smoking and which may have also resulted in shortness of breath. The physician noted that the Veteran did not have cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or the need for outpatient oxygen therapy. The physician noted that there was a history of a single episode of respiratory failure associated with an operative procedure, from which he recovered. In May 2009, the Board again remanded the claim. Noting that the elements of the rating criteria for 60 and 100 percent ratings are disjunctive so that any one element may satisfy the criteria, the Board instructed the RO to schedule the Veteran for a pulmonary examination at a VA facility that was capable of all tests including the oxygen consumption test. The Board also directed that the RO obtain current VA treatment records and afford the Veteran the opportunity to identify or submit additional evidence. VA outpatient treatment records showed that the Veteran received primary and cardiac care from private physicians. In an August 2008 encounter, a clinician noted the respiratory history and that the Veteran had shortness of breath "on and off" with no complaints and good response with inhalers. The Veteran's overall health deteriorated in early 2009, and the Veteran entered a private skilled nursing facility in approximately June 2009. In September 2009, the Veteran was transferred to a nursing facility under VA contract and he was seen at a VA clinic. A VA physician again noted shortness of breath "on and off" with no complaints and good response with inhalers. The physician noted that the Veteran had undergone thoracentesis in March and June 2009. Nursing records showed that the Veteran was receiving oxygen therapy. As noted above, the AMC scheduled the Veteran for another VA pulmonary examination in September 2009, but the Veteran was unable to travel because of serious illnesses. The Veteran died on October [redacted] 2009. In November 2009, the Veteran's daughters submitted letters to VA and to the Veteran's representative. One daughter identified herself as a registered nurse. The daughters reported that the Veteran had acquired pneumonia in March 2009 followed by refractory parapneumonic effusions. He required oxygen on a 24 hour basis since that time. The nurse reported that the Veteran's physicians had concluded that the respiratory illness, dysfunction, and requirement for oxygen were not caused by heart disease but by a combination of the residuals of the shrapnel wounds and the recurrent effusions. The nurse provided her opinion that the Veteran would have recovered from the pneumonia and its complications had he had the reserve lung capacity missing from the right lung. She further concluded that the serious oxygen deprivation could not be explained solely by the left lung disease. The daughters also contended that the paired organ doctrine of 38 C.F.R. § 3.383 was applicable in this case. Although the service-connected shrapnel wound residuals included scarring and dysfunction of the right side diaphragm, the rating criteria for restrictive disease contemplates total pulmonary performance and therefore includes consideration of loss of function of both lungs. In a December 2009 letter, the Veteran's private family practice physician noted the previously reported forced vital capacity measurement of 67 percent of predicted. He noted that the left lung pleural effusions were related to cardiac disease but that the lack of pulmonary reserve caused by the shrapnel injuries contributed to the disability. In a February 2010 letter, the Veteran's attending cardiologist noted that the Veteran had sustained serious chest trauma in a 1982 motor vehicle accident that resulted in a non-compliant chest wall. Combined with chronic obstructive pulmonary disease, the chest wall deficit resulted in significant dyspnea. In November 2011, a VA physician noted a review of the record and provided an assessment of the Veteran's multiple illnesses and disabilities and their impact on his declining health. The physician noted the episode of pneumonia in March 2009 and left side effusions followed by thoracentesis and pleurodesis. The physician acknowledged that the file did not contain detailed nursing home treatment records but commented, "...the notes summarize that the left sided effusions were due to cardiac disease and that he required nursing home care due to worsening of overall health. CHF may also have caused or contributed to new onset atrial fibrillation. In this context of deterioration in multiple organ systems, the patient required oxygen therapy." In a January 2013 supplemental statement of the case, the AMC continued to deny a rating in excess of 40 percent, concluding in part that oxygen therapy was necessary because of cardiac disease. In correspondence the same month, the appellant contended that a higher rating was warranted because the proper VA respiratory test equipment was not available at the time of a March 2008 scheduled examination. By the time another appointment was scheduled in September 2009, the Veteran was physically unable to travel or perform the test. The appellant referred to the June 2003 letter from the private physician as supporting wartime injuries as the cause for respiratory dysfunction and that a 2005 VA examination was actually no more than a blood pressure test. The appellant also called attention to her daughter's December 2009 letter in which she quoted the Veteran's attending physician's conclusion that supplemental oxygen was necessary not because of heart disease but rather because of the wartime injury and parapneumonic effusions affecting the right lung. This contradicts the physician's statement in his 2009 letter in which he stated that left sided effusions were caused by cardiac disease but that a lack of pulmonary reserve contributed to the dysfunction. The appellant waived consideration of her statement by the Agency of Original Jurisdiction in February 2013. As a preliminary matter, the Board notes that the weight of the pertinent lay and medical evidence indicates that the Veteran's decreased respiratory function had many overlapping causes: service-connected residuals of the shrapnel wounds, non-compliant chest wall from a motor vehicle accident, cardiovascular disease, and later the effects of pneumonia and multiple pleural effusions. There are conflicting opinions whether the effusions arose as a consequence of cardiac disease, pneumonia, or COPD or a combination of all. Service treatment records showed that empyema was an initial residual of the shrapnel injuries to the right lung. The private family physician and nurse daughter also concluded that a lack of pulmonary reserve from the wartime injuries were a factor. Upon review of "the notes" in the record that were reviewed by the VA physician in 2011, the Board is unable to locate a clear clinical finding, other than that by the private family physician in his 2009 letter, that left sided effusions were solely because of cardiac disease. There is no other clear opinion that oxygen therapy was solely for treatment of cardiac disease. Therefore, this conclusion is considered the opinion of the physician to be weighed with other opinions and clinical notes of record. Although there are different competent medical opinions on the relative contribution of each injury or illness, there is no objective evidence to quantify the relative contributions. When it is not possible to separate the effects of a service connected and non-service-connected condition, the doctrine of reasonable doubt is for application. Mittleider v. West, 11 Vet. App. 181 (1998). Although this precedent arose from a mental health disability claim, the Board concludes that the holding is applicable here, as the Veteran apparently had both service-connected and nonservice-connected disorders contributing to the loss of function. Considering the evidence in light of the applicable criteria, the Board finds that a rating in excess of 40 percent for the Veteran's residuals of a penetrating shell fragment wound to the right posterior chest and upper abdomen is not warranted prior to March 1, 2009. The evidence shows that FEV-1 of 40- to 55-percent predicted or FEV-1/FVC of 40 to 55 percent was not demonstrated. Instead, the Veteran had, at worst, post-dilator FEV-1 of 70 percent-predicted and FEV-1/FVC of 67 percent. Furthermore, the evidence shows the Veteran had, at worst, DLCO (SB) of 74-percent predicted, above the range required for an increased rating of 60 percent. The last criteria for establishing an increased rating of 60 percent is based upon results from a test of maximum oxygen consumption. While the Board remanded for the Veteran to be given this test, it was unable to be administered, first for lack of equipment, and second, because of the Veteran's rapidly declining health. Furthermore, the May 2007 VA examination report indicates that there was no cor pulmonale, right ventricular hypertrophy, or pulmonary hypertension, and did not need outpatient oxygen therapy. While the examination report indicates that the Veteran had had a single episode of respiratory failure, it was noted to have been associated with an operative procedure and not his service-connected disability. As such, the Board concludes that for the period prior to March 1, 2009, this criterion for an increased rating was not met. The Board recognizes that several attempts were made to afford the Veteran a complete examination that addressed all of the rating criteria. However, it is clear that the Veteran was unable to submit to an additional examination. Therefore, the Board must evaluate the claim based upon the evidence of record. This evidence does not show that the criteria for a rating in excess of 40 percent for the Veteran's disability were met at any time prior to March 1, 2009. However, resolving all reasonable doubt in the appellant's favor, the Board finds that a rating of 100 percent for residuals of shrapnel wounds to the right posterior chest and upper abdomen is warranted effective March 1, 2009. There is credible lay evidence and medical evidence indicating that the Veteran required full time oxygen therapy starting in March coincident with the episode of pneumonia followed by declining respiratory function. The need for oxygen therapy is a disjunctive element that satisfies the 100 percent rating criteria of Diagnostic Code 6843. As discussed above, the Board acknowledges that there is probative evidence both for and against the question of whether the need for oxygen therapy was a consequence of service-connected or nonservice connected disabilities, or an unquantified combination of multiple causes. Where, as here, after consideration of all evidence and material of record in a case for VA benefits, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such issue shall be given to the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwiski, 1 Vet. App.49, 53-56 (1990).. Given the above-noted facts, and resolving all reasonable doubt in favor of the appellant, the Board concludes that the criteria for a 100 percent rating are met from March 1, 2009 to the date of the Veteran's death in October 2009. ORDER A rating in excess of 40 percent for residuals of penetrating shell fragment wounds to the right posterior chest and upper abdomen for the purpose of accrued benefits, prior to March 1, 2009, is denied. A 100 percent rating for residuals of penetrating shell fragment wounds to the right posterior chest and upper abdomen for the purpose of accrued benefits, from March 1, 2009, is granted, subject to the legal authority governing the payment of VA compensation. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs