Citation Nr: 1328798 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 12-02 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a compensable evaluation for left lower lung lobectomy status post lung cancer prior to June 19, 2013, and in excess of 30 percent thereafter. REPRESENTATION Appellant represented by: Nebraska Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran and son ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from April 1945 to December 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In May 2013, the Board remanded the claim for a compensable evaluation for left lower lung lobectomy status post lung cancer from December 11, 2011. During remand status, the RO granted a 30 percent rating for left lower lung lobectomy status post lung cancer from June 19, 2013 and continued the noncompensable rating for the period from December 1, 2011, to June 19, 2013. As a higher schedular evaluation for this disability is possible, the issue of entitlement to an increased rating remains before the Board on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In April 2013, the Veteran along with his son testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The record shows that the RO reviewed pertinent VA treatment records dated through July 2013 and located in Virtual VA. The record further shows that those records associated with the Virtual VA after issuance of the most recent Supplemental Statement of the Case (SSOC) dated in July 2013 are either duplicative or cumulative of the evidence in the paper claims file or are irrelevant to the issue herein decided. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. For the period of time from December 1, 2011, to June 19, 2013, the Veteran's service-connected lung disability was manifested by complaints of shortness of breath with pulmonary function test (PFT) results post-bronchodilator that show Forced Expiratory Volume in one second (FEV-1) of 92 percent of predicted value, FEV-1 to Forced Vital Capacity (FEV-1/FVC) of 60 percent of predicted value, and Diffusion Capacity of the Lung for Carbon Monoxide by Single Breath Method (DLCO SB) of 75.5 percent of predicted value. 2. For the period of time from June 19, 2013, the Veteran's service-connected lung disability has been manifested by complaints of shortness of breath with PFT results of FEV1 better than 80 percent of predicted value; FEV-1/FVC of 46 percent of predict value; and for DCLO of 66 percent of predicted; report of VA examination dated in June 2013 reflects that the DLCO value most accurately reflects the level of disability associated the Veteran's adenocarcinoma status post left lower lung lobectomy. CONCLUSIONS OF LAW 1. The criteria for a 10 percent evaluation from December 1, 2011, to June 19, 2013, for left lower lung lobectomy status post lung cancer are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.96, 4.97, Diagnostic Codes 6819, 6844 (2012). 2. The criteria for an evaluation in excess of 30 percent from June 19, 2013, for left lower lung lobectomy status post lung cancer are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7. 4.96, 4.97, Diagnostic Codes 6819, 6844 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VA provided the Veteran VCAA notice in September 2012 and May 2013 after the adverse decision from which this appeal arises. Notwithstanding, the Board notes that following provision of all required notice and completion of all indicated development of the record, the originating agency readjudicated the claim in July 2013, affording due process of law. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim. All relevant medical records have been obtained and associated with the record. VA afforded the Veteran VA medical examinations in response to the claim herein decided. The Board previously reviewed the record, determined that a new VA examination was necessary, and remanded the case for the purpose of affording the Veteran a new VA examination. The Veteran presented for VA examination in June 2013. The Board has reviewed the examination report and finds substantial compliance with the requirements articulated in the Board's prior remand decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Furthermore, with respect to the medical evidence of record, the various examination reports and treatment records including the June 2013 VA examination report, contains finding that are adequate to make an informed decision on the merits of the claim. The examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate examination (including pulmonary function testing) and rendered an appropriate diagnosis consistent with the remainder of the evidence of record. The Board therefore concludes that the evidence of record is sufficient to rate the Veteran's disability under the appropriate rating criteria. See 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA further provided the Veteran a hearing before the Board. Under 38 C.F.R. § 3.103(c)(2), a VLJ who conducts a hearing must fulfill two duties: First, the VLJ must fully explain the issues and, second, the VLJ must suggest the submission of evidence that may have been overlooked. Here, the VLJ asked questions to ascertain the nature and severity of the Veteran's respiratory complaints, and whether there existed any outstanding medical evidence to support the claim. Based on the hearing testimony, the VLJ remanded the claim for additional development. Therefore, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See also, Bryant v. Shinseki, 23 Vet. App. 488 (2010). Accordingly, the Board will address the merits of the claim. Claims for Increase The Veteran contends that his service-connected lung disability is sufficiently severe to warrant an evaluation in excess of 30 percent from December 1, 2011. Both sworn testimony and lay statements reflect that he has significant shortness of breath, requires oral medications, and uses an inhaler. It is noted that service connection has been established for left lower lung lobectomy status post lung cancer and that the Veteran has other nonservice-connected respiratory disorders to include emphysema and chronic obstructive pulmonary disease. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran's lung disability is rated under Diagnostic Code 6819-6844. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 6819, a rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after the discontinuance of such treatment, the appropriate disability rating is determined by mandatory VA examination. If there has been no local recurrence or metastases, the rating is based on residuals. 38 C.F.R. § 4.97, Diagnostic Code 6819. Diagnostic Code 6844 provides that post-surgical residuals of lobectomy will be rated under the general rating formula for restrictive lung diseases. This formula provides the following criteria: A 100 percent disability rating for findings that show FEV-1 less than 40 percent of predicted value, or; the ratio of FEV-1 to 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. A 60 percent disability 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 cardio-respiratory limit). A 30 percent disability rating is assigned for 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 10 percent disability rating is assigned for 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. Respiratory disorders rated under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. Rather, a single rating will be assigned under the code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a). Effective October 6, 2006, VA amended 38 C.F.R. § 4.96 to add provisions that clarify the use of PFTs 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 PFTs to evaluate respiratory conditions except in certain situations. When the PFTs are not consistent with clinical findings, evaluation should generally be based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. 38 C.F.R. § 4.96 (d)(3). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Analysis The Veteran underwent left lower lung lobectomy in April 2010 for adenocarcinoma. He declined chemotherapy and radiation. The record shows that the Veteran did well postoperatively and that there has been no evidence of metastases or recurrence of lung cancer. VA assigned a 100 percent evaluation for this disability prior to December 1, 2011, a noncompensable evaluation from December 1, 2011, to June 19, 2013, and a 30 percent evaluation from June 19, 2013. Having carefully reviewed the evidence of record, the Board finds that the evidence warrants a 10 percent evaluation compensable evaluation from December 1, 2011, to June 19, 2013; however, the preponderance of the evidence is against an evaluation in excess of 30 percent from June 19, 2013, for left lower lung lobectomy status post lung cancer. Neither the lay nor the medical evidence more nearly the criteria for an evaluation greater than 10 percent from December 1, 2011, to June 19, 2013, or 30 percent from June 19, 2013. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code6819-6844. The Board notes that the evaluation for restrictive lung disease is predicated upon pulmonary function test results, objective medical findings rather than lay assertions as to the degree of impairment. VA respiratory examination dated in May 2011 reflects findings for stable postoperative changes of partial left lobectomy and emphysema unchanged. The diagnoses were (1) lung cancer, adenocarcinoma left lung with status post lower lobe lobectomy, active and (2) chronic obstructive pulmonary disease. The examiner stated that the Veteran was very limited in his activities due to his lack of energy, easy fatigability, and shortness of breath. Treatment included inhalers to help with breathing and gualfenesin 400 mg 4 times daily for chronic cough. His course since onset was described as progressively worse. The examiner indicated that the Veteran was retired and able to do very light gardening on a good nice day and help his wife with dishes, but was otherwise very limited in his ability to perform or help with household chores. The examiner noted that treatment for adenocarcinoma had been completed. The examiner clarified the use of the term "active" in a supplemental statement dated May 2011, indicating he meant that the condition has no known recurrence but continued to be monitored for recurrence. PFTs showed FEV-1 of 92 percent; FVC of 104.5 percent; FEV-1/FVC of 60 percent; and DLCO of 75.5 percent. Report of VA examination dated in June 2013 reflects diagnoses for chronic obstructive pulmonary disease (COPD) and adenocarcinoma of the left lower lung status post left lower lobectomy. It was noted that the Veteran's condition did not require use of corticosteroid medication, antibiotics or outpatient oxygen therapy. Rather, he required daily inhaled medications, bronchodilator therapy, anti-inflammatory medication, and Spiriva handi-inhaler. The pulmonary function testing at this time showed that the Veteran had moderate obstructive lung dysfunction: FVC values were 93.6 percent of predicted pre-bronchodilator and 99.2 percent of predicted post-bronchodilator; FEV-1 values were 88.1 percent of predicted pre-bronchodilator and 85.9 percent post-bronchodilator; FEV-1/FEV values were 58 percent of predicted pre-bronchodilator and 61 percent post-bronchodilator; and DLCO was 66 percent of predicted pre- bronchodilator and post-bronchodilator. The examiner indicated that the DLCO test result most accurately reflects the Veteran's level of disability based on his left lower lung lobectomy (and without consideration of non-service connected emphysema and chronic obstructive pulmonary disease). For the period of time between December 1, 2011, and June 19, 2013, PFT results reflect DLCO of 75.5 percent, which warrants the assignment of a 10 percent disability rating and no more. The rating criteria provide a 10 percent evaluation where DLCO is 66 to 80 percent of predicted value; a higher rating is warranted if DLCO is 56 to 65 percent of predicted value. Here, the DLCO finding for 75.5 percent more nearly reflects the criteria for a 10 percent disability evaluation, and no more. 38 C.F.R. §§ 4.7, Diagnostic Code 6844. For the period of time from June 19, 2013, PFT results show FEV-1/FVC of 61 percent value and DLCO of 66 percent of predicted value, which warrant no more than the assigned evaluation 30 percent evaluation. Again, the general rating formula provides that FEV-1/FVC values of 56 to 70 percent or DLCO (SB) values of 56 to 65 percent warrants a 30 percent evaluation. The Veteran's service-connected lung disability more nearly reflects the criteria for a 30 percent evaluation, and no more. 38 C.F.R. § 4.7, 4.97, Diagnostic Codes 6819, 6844. The Board accepts the Veteran's statements and testimony concerning his difficulty breathing and shortness of breath along with the testimony of his son and written lay statements of other reflecting essentially the same. The Veteran is competent to report symptoms that are perceivable to him, and the Veteran's son and the other lay persons are also competent to report their observations of the Veteran, such as, his shortness of breath. However, the Veteran, his son, and the individuals writing VA on his behalf are not competent to assign particular PFT findings to his disability or to identify which result more accurately reflects the level of disability associated with his service-connected lung disability. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007). The disability evaluation in this case is predicated on medical findings, PFT results-such findings are is not susceptible to lay observation. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for a higher disability evaluation, the medical findings do not meet the schedular requirements for a higher evaluation, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative of the degree of disability. The Veteran has no particular medical expertise. Furthermore, neither the lay nor the medical evidence reflects that the disability met the criteria for a higher evaluation at any time that now assigned for the periods of time at issue here. As such, the Board finds that further staging of the disability rating is not warranted. See Fenderson/Hart, supra. Accordingly, a 10 percent evaluation for lung disability from December 1, 2011, to June 19, 2013, is granted; and the claim for an evaluation in excess of 30 percent from June 19, 2013, is denied. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. See Gilbert, supra. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record reflects that the manifestations of the Veteran's service-connected lung disability are specifically contemplated by the schedular criteria, which takes into account his pulmonary function. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER A 10 percent evaluation from December 1, 2011, to June 19, 2013, for left lower lung lobectomy status post lung cancer is granted. An evaluation in excess of 30 percent from June 19, 2013, for left lower lung lobectomy status post lung cancer is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs