Citation Nr: 1328363 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 12-34 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a compensable rating for a lung nodule and constrictive bronchiolitis. ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2006 to September 2006 and from March 2009 to February 2010. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDING OF FACT The post-bronchodilator results of the Veteran's September 2012 pulmonary function test show a FEV-1 (Forced Expiratory Volume in one second) of 123 percent predicted. CONCLUSION OF LAW The criteria for an initial compensable rating for a lung nodule and constrictive bronchiolitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.96, 4.97, Diagnostic Code 6820-6600 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon VA's receipt of a claim for veterans' benefits, the Veterans Claims Assistance of Act of 2000 (VCAA) imposes on VA: (1) a duty to notify and (2) a duty to assist. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). As discussed below, VA complied with both these duties. The duty to notify requires VA to notify claimants of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) the VA will seek to provide; and (3) the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (citing 38 U.S.C.A. § 5103(a)); 38 C.F.R. § 3.159(b)(1). VA must also notify a claimant that a disability rating and an effective date for the award for benefits will be assigned if service connection is awarded. Id. Notice must be provided before an initial unfavorable decision on a claim by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Here, VA fulfilled its duty to notify by the sending the Veteran a letter, dated in June 2011, before the RO adjudicated his claim, that notified him of the information detailed above. In any event, the Veteran has not alleged any prejudice regarding VA's duty to notify, and the Board finds none. See Shinseki v. Sanders, 556 U.S. 396 (2009) (stating that the burden of showing harmful error rests with the party raising the issue). The duty to assist requires VA to help claimants develop their claims by: (1) obtaining evidence such as treatment records and other relevant evidence; and (2) providing a medical examination if warranted based on the factors set forth in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, VA obtained the Veteran's VA treatment records and provided him with examinations of his respiratory system in September 2011, November 2011, and September 2012. The Veteran has not identified any outstanding pertinent evidence related to his increased rating claim. The Board finds that no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim and that appellate review may proceed without prejudice to the Veteran. 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). II. Merits of the Claim Disability ratings are determined by applying the criteria found in VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If a disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all findings specified. However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In cases where a veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to determine if the evidence warrants the assignment of different ratings for different periods of time during these claims, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In deciding a claim, the Board must consider all information and lay and medical evidence of record. The Board must provide reasons and bases to support its decision. However, the Board need not discuss in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance of positive and negative evidence, i.e., when the evidence is in a state of "equipoise," regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b) (West 2002 & Supp. 2012). The Veteran, a member of the Army band while in the service, was granted service connection for a lung nodule and constrictive bronchiolitis with a non-compensable rating, effective date June 22, 2011. The lung nodule and constrictive bronchiolitis were rated under Diagnostic Code 6820 (Neoplasms, benign), the portion of the rating schedule for the respiratory system. See 38 C.F.R. § 4.97. This diagnostic code directs that the disability be evaluated pursuant to an appropriate respiratory analogy. The RO considered the veteran's lung nodule and bronchiolitis as analogous to diseases of the trachea and bronchi, and applied the schedular criteria for chronic bronchitis, Diagnostic Code 6600. The Board acknowledges the Veteran's statement that he should be rated under a different diagnostic code. However, the Board finds Diagnostic Code 6600 to be the most appropriate criteria for rating the Veteran's disability. Under Diagnostic Code 6600, chronic bronchitis is rated primarily based on the objective numerical results of pulmonary function tests (PFT). 38 C.F.R. § 4.97. A PFT showing Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent predicted, FEV-1/ Forced Vital Capacity (FVC) of 71 to 80 percent predicted, or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted warrants a 10 percent rating; FEV-1 of 56 to 70 percent predicted, FEV- 1/FVC of 56 to 70 percent, or DLCO (SB) 56 to 65 percent predicted warrants a 30 percent rating; 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) warrants a 60 percent rating; and FEV-1 less than 40 percent of predicted value, FEV-1/FVC less than 40 percent, DLCO (SB) less than 40-percent predicted, maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), episode(s) of acute respiratory failure, or requires outpatient oxygen therapy warrants a 100 percent rating. 38 C.F.R. § 4.97, DC 6600 (2012). Post-bronchodilator studies are required when PFTs 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 tests should not be done and states why. 38 C.F.R. § 4.96(d)(4). When evaluating based on PFTs, post-bronchodilator results are used in applying evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre- bronchodilator values are used for rating purposes. 38 C.F.R. § 4.96(d)(5). The Board finds that the evidence of record does not establish that an initial compensable rating for Veteran's service-connected lung nodule and bronchiolitis is assignable in this case. 38 C.F.R. § 4.7. A December 2010 VA treatment note indicates that the Veteran's PFTs "were really good." The report of Veteran's September 2011 VA examination reveals that results of the Veteran's PFTs were all normal. In the report of the November 2011 VA examination, the examiner recounted the Veteran's complaints of breathing problems that started after his return from Iraq, occurring primarily while running, but stated that PFTs performed by an outside physician and those conducted at the VA hospital had all been normal. The Veteran underwent a thorough VA examination of his respiratory conditions in September 2012. In the report of the examination, the examiner's summary of the Veteran's respiratory condition included his complaints of feeling that he was not getting enough air while running after returning from Iraq. The Veteran reported that his current symptoms were shortness of breath on exertion. The Veteran, however, reported that he walked one and a half to two miles three times a week and experienced no wheezing, coughing, or chest pain. The Veteran's respiratory conditions were noted not to require use of oral parenteral medications, corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics or oxygen therapy. During the examination, the Veteran underwent pulmonary function testing (PFT). Pre- bronchodilator PFT results were as follows: FVC 123 percent predicted; FEV-1 108 percent predicted; FEV-1/FVC 72 percent; and DLCO 131 percent predicted. Post- bronchodilator PFT results were as follows: FVC 129 percent predicted; FEV-1 123 percent predicted; and FEV-1/FVC 79 percent. The examiner endorsed that the PFTs results accurately reflected the Veteran's current pulmonary function. The Board finds the September 2012 VA examination report to be adequate upon which to base a decision with regard to the Veteran's claims. The VA examiner reviewed the claims file, personally interviewed and examined the Veteran, including eliciting a history from him, administered the appropriate tests, and provided the information necessary to evaluate his respiratory conditions under the applicable rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once the VA undertakes an effort to provide an examination to develop a claim, even if not statutorily obligated to do so, the VA must ensure the examination provided is adequate). In deciding the Veteran's appeal, the Board has considered all the evidence of record and finds the report of the September 2012 examination to be the most probative evidence on whether the Veteran is entitled to a compensable rating. The Veteran contends that he is entitled to at least a 10 percent rating because the FEV-1/FVC values of his September 2012 PFT fall between 71 and 80 percent predicted. He also points to an August 2011 VA treatment note indicating that his "FEV-1/FVC was 75% / 78%." Diagnostic Code 6600 does provide for a 10 percent rating if PFT values are between 71 and 80 percent of what was predicted for FEV-1/FVC. However, when there is a disparity between the results of different pulmonary function tests 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, must be used. 38 C.F.R. § 4.96(d)(6). Here, the September 2012 examiner endorsed that the FEV-1 test results most accurately reflected the Veteran's level of disability. The FEV-1 test results were 123 percent predicted post- bronchodilator and 108 percent predicted pre-bronchodilator. Both clearly fall outside of the criteria warranting a 10 percent rating. The Board acknowledges the Veteran's numerous statements in support of his claim, including that he can no longer play the tuba, which he did professionally, that after returning from Iraq he finds himself breathing very heavily after running only short distances, and that he is unable to carry laundry up two flights of stairs without being winded or stopping to catch his breath. The Board does not question the sincerity of Veteran's belief that his respiratory conditions warrant a higher rating. Moreover, the Board recognizes that the Veteran is competent to report respiratory symptoms, such as shortness of breath, which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). Further, the Board considers his contentions to be credible in the absence of any evidence to the contrary. Caluza v. Brown, 7 Vet. App. 498 (1995). Nevertheless, the Board notes that, as a lay person without the appropriate medical expertise, the Veteran is not competent to provide a probative opinion on a medical matter, such as the severity of his respiratory conditions within the context of the applicable rating criteria. Bostain v. West, 11 Vet. App. 124, 127 (1998). Therefore, his contentions, standing alone, are insufficient to refute the probative assessments of the September 2012 VA examiner upon which the Board has relied in determining the appropriate rating for the Veteran's respiratory conditions. In sum, the preponderance of evidence shows that the Veteran's service-connected respiratory conditions do not meet the criteria for a compensable rating under the applicable diagnostic criteria. Moreover, while the Board has considered staged ratings, the evidence of record does not establish that a higher evaluation has been warranted at any point during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999). As the preponderance of the evidence is against the Veteran's claim for an increased rating, that claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2012), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." If the evidence raises the question of entitlement to an extraschedular rating, 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). In this case, the medical evidence fails to show anything unique or unusual about the Veteran's respiratory condition that would render the schedular criteria inadequate. The Veteran's main symptom is shortness of breath, which is evaluated in the pulmonary function testing. In any event, the evidence does not show that the Veteran's respiratory conditions have required any hospitalization or caused marked interference with employment. While the Veteran has stated that his respiratory conditions will prevent him from becoming a professional tuba player, he informed the September 2012 examiner that he is a self-employed guitar player and that he had quit job as a floor manager the year before because he was able to support himself playing the guitar. Finally, the Veteran points to a 2012 decision in which the Board found the schedular criteria inadequate because the medical evidence of record indicated that the PFTs were inadequate in determining the severity of that veteran's constrictive bronchiolitis. The current Veteran cites the decision, apparently, for precedential effect. However, prior Board decisions are not precedential and the undersigned is not bound by the determination of another Veterans Law Judge in another case for another veteran, based on other evidence. 38 C.F.R. § 20.1303 (2012). The Board concludes that the criteria for an initial compensable rating for a lung nodule and constrictive bronchiolitis have not been met. ORDER Entitlement to a compensable rating for a lung nodule and constrictive bronchiolitis is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs