Citation Nr: 1332022 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-23 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial compensable rating prior to July 2, 2011, and a rating in excess of 10 percent as of July 2, 2011, for Bochdalek hernia. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active air service from January 1982 to August 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. Jurisdiction over the case was subsequently transferred to the RO in New Orleans, Louisiana. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2010 and accepted that hearing in lieu of an in-person hearing before a Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This case has previously been before the Board, most recently in May 2013, at which time the Board in part remanded the sole remaining issue to obtain any additional medical records and afford the Veteran a new examination. A June 2013 letter asked the Veteran to forward additional service retired records dated since October 2012 or provide the names of the facilities and dates of treatment so that VA could obtain the records. The Veteran was informed that treatment records from the Shreveport VA Medical Center (VAMC) for the month of July 2011 had been obtained and asked him to inform VA if he has received any recent VA treatment. In an authorization and consent form received in July 2013, the Veteran stated that he had been seen by physicians at the Overton Brooks (Shreveport) VAMC and was advised to have surgery but has not had it yet. The Board notes that the July 2011 VA treatment notes that have been obtained indicate that he was advised to undergo surgery and to call the VAMC if he decided to do so. Therefore, the Board finds that there are no additional VA medical records. The Veteran did not advise VA of any additional service retired records. Thus, the Board finds that there is no further duty to obtain medical records in compliance with the prior remand directives. Dyment v. West, 13 Vet. App. 141 (1999). The Veteran also had an examination in June 2013 and the report of that examination is substantially responsive to the Board's request. Dyment v. West, 13 Vet. App. 141 (1999). FINDING OF FACT The Veteran's Bochdalek hernia has been manifested by normal pulmonary function tests. CONCLUSION OF LAW The criteria for a compensable rating prior to July 2, 2011, and a rating in excess of 10 percent from July 2, 2011, for Bochdalek hernia have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6843 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim arises from an appeal of the initial rating following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, no further notice is needed. Next, VA has a duty to assist the Veteran in the development of the claim. That duty includes assisting in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service medical records and post-service reports of VA and private treatment and examination. The Veteran's statements in support of the claim are of record. The Board has carefully reviewed those statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. VA provided the Veteran with examinations in July 2006 and July 2011 to determine the nature and severity of his disability. 38 C.F.R. § 3.159(c)(4) (2013). When VA provides an examination or obtains an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In May 2013, as the record indicated that his disability may have worsened, the Board requested another examination, which was provided in June 2013. The Board finds all of the VA examination reports to be thorough and adequate upon which to base a decision on the claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information needed to evaluate the disability under the applicable rating criteria. Accordingly, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Initial Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994); Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When the Veteran has disagreed with the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of staged ratings, the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119 (1999). The analysis below is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In every instance where the Schedule for Rating Disabilities does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2013). The Veteran's Bochdalek hernia has been rated under Diagnostic Code 6899-6843. 38 C.F.R. § 4.97 (2013). Thus, his disability has been rated by analogy under Diagnostic Code 6843 for traumatic chest wall defect, which is rated under the General Rating Formula for Restrictive Lung Disease. 38 C.F.R. §§ 4.20, 4.27, 4.97 (2013). His disability has been assigned a 0 percent rating prior to July 2, 2011, and a 10 percent rating as of July 2, 2011. Under the General Rating Formula for Restrictive Lung Disease, a100 percent rating is assigned for disability manifested by Forced Expiratory Volume in one second (FEV-1) less than 40 percent of predicted value; or the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent; or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); or cor pulmonale (right heart failure); or right ventricular hypertrophy; or pulmonary hypertension (shown by Echo or cardiac catheterization); or episode(s) of acute respiratory failure; or requires outpatient oxygen therapy. A 60 percent rating is assigned for disability manifested by FEV-1 of 40- to 55-percent predicted; or FEV-1/FVC of 40- to 55-percent predicted; or DLCO (SB) of 40- to 55-percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 30 percent rating is assigned for disability manifested by FEV-1 of 56- to 70-percent predicted; or FEV-1/FVC of 56- to 70-percent predicted; or DLCO (SB) of 56- to 65-percent predicted. A 10 percent rating is assigned for disability manifested by 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. 38 C.F.R. § 4.97 (2013). After a careful review of the record, the Board finds that a higher initial rating is not warranted for the Veteran's Bochdalek hernia at any time during the rating period. During a July 2006 VA examination, the Veteran complained of intermittent chest pain, usually in the left upper chest, with some tenderness in that area at times, not usually associated with exertion, that lasts for one to two hours. He reported having a normal ECG (electrocardiogram) and chest x-rays. He denied being diagnosed with a heart or lung condition. Examination found the lungs to be clear with no wheezes or other abnormality. Pulmonary function tests showed an FVC-1 of 122-percent predicted and an FEV-1/FVC of 108-percent predicted. It was noted that the pre-bronchodilator results were normal with no significant improvement post-bronchodilator. The examiner noted that the Veteran had musculoskeletal chest pain with no evidence of cardiac or pulmonary disease. X-rays showed a slight soft tissue fullness along the left lung base but no other cardiopulmonary abnormalities. An August 2006 VA CT (computed tomography) scan of the chest showed a Bochdalek hernia containing fat in the left lung base. A June 2009 letter from a physician at the Barksdale Air Force Base shows that the Veteran was not being actively treated for the Bochdalek hernia. May 2011 VA Pulmonary function tests showed an FVC-1 of 68-percent predicted (91-percent predicted pre-bronchodilator), FEV-1/FVC of 68-percent predicted (93-percent predicted pre-bronchodilator), and a DLCO (SB) of 84-percent predicted. It was noted that the pre-bronchodilator results were normal with no significant improvement post-bronchodilator. During a July 2011 VA examination, the Veteran complained of recurrent chest pain that lasted for a few minutes, sometimes with an increased heart rate and sometimes occurring with exertion, that caused him to stop what he was doing for a few minutes. He denied receiving any medications or treatment, including oxygen therapy. He denied any history of cor pulmonale, right ventricular hypertrophy, or pulmonary hypertension. Examination found the lungs to be clear with no rales, rhonchi, or wheezes. The examiner noted that the pulmonary function tests were normal, as they were during the 2006 VA examination. X-rays showed a small left Bochdalek hernia but were otherwise unremarkable. During a June 2013 VA examination, the Veteran complained of chest tightness and an increased heart rate occurring a couple of times per week for a few minutes that caused him to stop and sit for a couple of minutes due the sensation that he might pass out, although he did not pass out. He stated that the symptoms were not related to exertion. He denied being diagnosed with any other heart or lung condition. He reported having normal ECGs and a normal stress test. He denied needing any medications or other treatment. Pulmonary function tests showed an FVC of 120-percent predicted, FVC-1 of 124-percent predicted, FEV-1/FVC of 78-percent predicted, and a DLCO (SB) of 104-percent predicted, all pre-bronchodilator. The examiner indicated that the FVC was the most accurate reflection of the Veteran's level of disability and that post-bronchodilator testing was not done because pre-bronchodilator results were normal. ECG was normal. X-rays showed a small left Bochdalek hernia but no active cardiopulmonary disease. The examiner indicated that the Veteran's respiratory condition did not impact his ability to work. The July 2006 pulmonary function tests were interpreted as showing normal pre-bronchodilator results with no significant improvement post-bronchodilator. The post-bronchodilator results do not meet the criteria for a compensable 10 percent rating. The May 2011 pulmonary function tests were also interpreted as showing normal pre-bronchodilator results with no significant improvement post-bronchodilator. Post-bronchodilator testing was not done during the June 2013 pulmonary function tests and the examiner stated that post-bronchodilator testing was not done because pre-bronchodilator results were normal. Therefore, a higher rating is not warranted at any time during the rating period. 38 C.F.R. § 4.31 (2013). The Board notes that the post-bronchodilator tests from the May 2011 pulmonary function tests meet the criteria for a 30 percent rating based on an FVC-1 of 68-percent predicted and an FEV-1/FVC of 56-percent predicted. However, during the pendency of the appeal, the regulations pertaining to the evaluation of respiratory disabilities were amended to clarify the use of pulmonary function tests in rating respiratory disorders. Effective October 6, 2006, a new paragraph (d) was added to 38 C.F.R. § 4.96. That regulatory amendment requires pulmonary function tests to rate respiratory conditions except in certain situations, such as when the pulmonary function tests are inconsistent with the other clinical evidence of record and the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. The amended regulation also requires post-bronchodilator studies except when the results of pre-bronchodilator tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. The amended regulation also directs that, when rating a disability based on pulmonary function tests, post-bronchodilator results should be used unless such results are poorer than the pre-bronchodilator results, in which case the latter should be applied. 38 C.F.R. § 4.96(d) (2013). The Board recognizes that the above amendment had not yet taken effect when the Veteran filed his claim for service connection in June 2006 and, thus, is not binding in this case. Still, the amendment provides guidance on the use of pulmonary function tests, which the June 2013 examiner ascribed to in interpreting the results of the May 2013 pulmonary function tests. Moreover, practically speaking, if the Veteran is not being treated for his Bochdalek hernia with bronchodilators or any other medication, then the pre-bronchodilator results more accurately describe the severity of his disability because he would not, under any normal circumstances, be in a post-bronchodilator situation because he does not use bronchodilators. In this case, all of the Veteran's pre-bronchodilator results have been interpreted as being normal. Therefore, the Board finds that a 30 percent rating is not warranted. The Board has also considered whether any other applicable rating criteria may enable a higher rating. However, after review, the Board finds that no other diagnostic code provides for a higher rating. In conclusion, the Board finds that a higher initial rating for Bochdalek hernia is not warranted at any time since the effective date of service connection. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additional Considerations The Board must also determine whether the schedular rating are inadequate, requiring a referral of the claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular rating is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111 (2008). When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular rating is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2013); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that the schedular ratings are adequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected Bochdalek hernia, but the medical evidence shows that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability. As the rating schedule is adequate to rate the disability, referral for extra-schedular consideration is not in order. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, due to his service-connected disability. The July 2011 VA examination report shows that he was working full-time and there is no evidence indicating that his employment status has changed. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER An initial compensable disability rating prior to July 2, 2011, and a disability rating in excess of 10 percent from July 2, 2011, for Bochdalek hernia is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs