Citation Nr: 1339264 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-19 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. The propriety of the expiration of a 100 percent evaluation for lung carcinoma of the left upper lobe, status post lobectomy, with moderately advanced chronic inactive pulmonary tuberculosis, effective September 1, 2009. 2. Entitlement to an increased rating (evaluation) in excess of 10 percent for lung carcinoma of the left upper lobe, status post lobectomy, with moderately advanced chronic inactive pulmonary tuberculosis, since September 1, 2009. REPRESENTATION Appellant represented by: Teena Petro, Accredited Agent ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1965 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Indianapolis, Indiana. FINDINGS OF FACT 1. A rating decision dated in June 2009 reduced the 100 percent schedular rating assigned for lung carcinoma of the left upper lobe, status post lobectomy, with moderately advanced chronic inactive pulmonary tuberculosis to 10 percent, effective September 1, 2009. 2. At the time of the reduction, a 100 percent rating for the Veteran's disability had been in effect since June 2008, less than five years. 3. At the time of the reduction, there was no active malignancy; since a left upper lobectomy in April 2008, there has been no evidence of malignant neoplasms, local recurrence, or metastasis. 4. From September 1, 2009, the lung carcinoma with pulmonary tuberculosis has resulted in Forced Vital Capacity (FVC) of 77 percent or more of predicted value, Forced Expiratory Volume at one second (FEV-1) of 72 percent or more, FEV-1/FVC of 74 percent or more, and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 70 percent or more. 5. The evidence has not displayed recurrent lung carcinoma or metastases or active tuberculosis after April 2008. CONCLUSIONS OF LAW 1. The criteria for restoration of a 100 percent disability rating for lung carcinoma with pulmonary tuberculosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.105(e), 4.97, Diagnostic Code 6819 (2013). 2. The criteria for a disability rating higher than 10 percent for lung carcinoma with pulmonary tuberculosis have not been met for any period. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.105(e), 4.97, Diagnostic Codes 6600-6847 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board finds that in this case VA has satisfied its duties to notify the Veteran under the VCAA. In July 2008, January 2009, and March 2009 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, the July 2008 letter provided the general criteria for the assignment of an effective date and initial rating. Id. In the present case, initial notice was issued prior to the June 2009 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the expiration of the 100 percent rating for lung carcinoma, VA provided the Veteran with specific notice of this proposed change prior to the effective date of the expiration of the 100 percent rating according to the rating criteria. Specifically, in a March 2009 letter, the RO proposed rating the residual disability at 10 percent. The notice letter proposing this residual rating, which procedural guidelines are required by 38 C.F.R. § 3.105(e), provided the Veteran thorough notice of VA's proposed rating action, the evidence upon which it was based, and due process opportunity to present evidence or argument prior to the implementing the rating of residuals. The regulations at 38 C.F.R. § 3.105(e) are framed in terms of "reduction." While this Veteran's case does not actually involve a reduction, but rather a lower rating based on rating of residual disability where there is no active malignancy (neoplasms, recurrence, or metastasis) under Diagnostic Code 6819, the same due process notice procedures that apply to actual reductions are nevertheless provided by the rating criteria at Diagnostic Code 6819. The notice includes setting forth all material facts and reasons for the lowered rating. The due process procedures require that a veteran be given 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested or the veteran requests a predetermination hearing but fails to appear without good cause and reduction is considered to be still warranted, a rating action will be taken to effectuate the action. The effective date of the rating will be the last day of the month in which a 60 day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2) (2013). The Board finds that the RO complied with the procedural requirements for rating the disability for lung carcinoma, to include providing proper notification of the proposal to rate the residual disability and giving the Veteran the opportunity to submit evidence. The March 2009 letter and accompanying proposed rating action notified the Veteran of the intent to rate the residuals as 10 percent disabling. The Veteran was afforded an opportunity to have a predetermination hearing and was given at least 60 days in which to present additional evidence. 38 C.F.R. § 3.105(e), (i). He was also informed of the evidence obtained and considered by VA in making its decision. Final action to rate to 10 percent was taken pursuant to 38 C.F.R. § 3.105(e), and the Veteran was again informed of this proposed action in June 2009. The 10 percent rating for residuals of disability was made effective beginning September 1, 2009. Based on a review of this procedural history, the Board finds that the RO complied with all of the requirements of 38 C.F.R. § 3.105(e). The Veteran was notified of his procedural rights, and was given an opportunity for a hearing and time to respond. Finally, the expiration of the temporary total rating was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105(e). For these reasons, the Board finds that the expiration of the temporary total rating for lung carcinoma was procedurally proper. As such, the Board will address the propriety of the expiration on its merits below. The Board further finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical treatment records. The Veteran was also afforded multiple VA medical examinations, the most recent conducted in April 2013, during the appeals period. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Increased Rating for Lung Carcinoma The Veteran challenges the modification of the evaluation of the lung carcinoma of the left upper lobe, status post lobectomy, with moderately advanced chronic inactive pulmonary tuberculosis, from 100 to 10 percent, effective September 1, 2009. He also asserts that, should the 100 percent rating not be granted from September 1, 2009, a rating in excess of 10 percent is nevertheless warranted. Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Veteran has been awarded service connection for lung carcinoma of the left upper lobe, status post lobectomy, with moderately advanced chronic inactive pulmonary tuberculosis, and was initially assigned an evaluation under Diagnostic Code 6819, for malignant neoplasms of the respiratory system. This Diagnostic Code requires that "[s]ix months after discontinuance of [any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure], the appropriate disability rating shall be determined by mandatory VA examination," and that "[a]ny change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e)." Diagnostic Code 6819 specifically contemplates that such malignancies are likely to improve after treatment, and if no local recurrences or metastases are found, the disorder is to be rated on residuals. 38 C.F.R. § 4.97, Diagnostic Code 6819. As an initial matter, the Board observes that this appeal arises from a June 2009 rating decision which informed the Veteran that the evaluation for lung carcinoma with history of pulmonary tuberculosis was to be modified from 100 percent to 10 percent pursuant to Diagnostic Code 6819. The Veteran has disagreed with this modification. In the present case, the 100 percent rating had been in effect for less than a five-year period at the time the disability was evaluated and the RO proposed to assign a lower disability rating for residuals of disability according to Diagnostic Code 6819. Specifically, the 100 percent disability rating became effective June 11, 2007. Following a May 2009 VA examination, the RO proposed in March 2009 to assign a lower rating. As a result, the requirements under 38 C.F.R. § 3.344(a) and (b) do not apply. Nevertheless, the Court has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. The question of whether a disability has improved involves consideration of the applicable rating criteria. As noted above, the disability at issue is rated under Diagnostic Code 6819, which specifically provides for expiration of the 100 percent evaluation. 38 C.F.R. § 4.97, Diagnostic Code 6819. Under Diagnostic Code 6819, once cancer was no longer active and following the cessation of treatment, the Veteran was no longer eligible to be rated under the initial diagnostic code. See Bennett v. Brown, 10 Vet. App. 178 (Vet. App. 1997). Rather, the Veteran must be rated on residuals, per operation of the regulation. In Bennett, the Court specifically addressed Diagnostic Code 6819 and concluded that the language of the Code itself specifically operates to render the 100 percent evaluation temporary and subject to possible modification, depending on any respiratory residuals; therefore, this is not a case of actual reduction, even though Diagnostic Code 6819 requires that the due process requirements of 38 C.F.R. § 3.105(e) (as also required for actual reductions) be met. As the Court in Bennett noted, Diagnostic Code 6819 provides that any respiratory impairment be rated based on residuals once the absence of local recurrences or metastases is established. Id. at 183. On VA examination in May 2009, the Veteran was without such recurrences of metastases; thus, by operation of law based on the undisputed evidence of no recurrence or metastases, the temporary 100 percent evaluation properly expired in August 2009 in accordance with Diagnostic Code 6819, and evaluation of the disorder based on residuals is proper. As the Veteran has contested the 10 percent rating assigned the lung carcinoma effective September 1, 2009, the Board must also address the issue of an increased evaluation in excess of 10 percent. Had this been an actual reduction case, then the question of "restoration" of 100 percent would have encompassed the request for a rating for residual disability in excess of 10 percent; however, because this case involves rating the residuals of disability following the expiration of the 100 percent rating, the questions are increased rating questions, that is, whether a higher rating than 10 percent is warranted for the residual disability. The respiratory disorder has been rated as a hyphenated code, 6722-6819. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2013). Diagnostic Code 6722 is for the evaluation of tuberculosis, pulmonary, chronic, moderately advanced; however, it is limited to evaluation of tuberculosis entitled on or before August 19, 1968. In May 1978, the Veteran was granted service connection, with a 10 percent initial rating, for pulmonary tuberculosis, effective September 6, 1977; thus, Diagnostic Code 6722 does not apply. Nevertheless, because the 10 percent rating for tuberculosis has been in effect continuously for more than 20 years, it is protected and, absent fraud, will not be reduced. 38 C.F.R. § 3.951(b) (2013). In January 2009, the Veteran was also granted service connection for lung carcinoma of the left upper lobe, effective June 11, 2008. 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 diagnostic 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) (2013). As such, the service connection awards of tuberculosis and lung carcinoma have been merged, and Veteran has been granted a combined hyphenated rating. Criteria for the evaluation of both tuberculosis and residuals of lung carcinoma will be considered by the Board. For pulmonary tuberculosis initially evaluated after August 19, 1968, such as the present case, Diagnostic Codes 6730-32 are applicable. Additionally, because the competent evidence of record, including all recent VA examination reports, suggests the tuberculosis is inactive, Diagnostic Code 6731 applies. This code states that residuals are to be rated, depending on specific findings, as interstitial lung disease, restrictive lung disease, or, when obstructive lung disease is the major residual, as chronic bronchitis (Diagnostic Code 6600). 38 C.F.R. § 4.97, Diagnostic Code 6731. The General Rating Formula for Interstitial Lung Disease provides the following: A 100 percent is assigned if the disability requires outpatient oxygen therapy or is manifested by Forced Vital Capacity (FVC) less than 50 percent of predicted, Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40 percent of predicted, cor pulmonale, pulmonary hypertension, or maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 60 percent rating is assigned if the disability is manifested by FVC 50 to 64 percent of predicted, by DLCO (SB) 40 to 55 percent of predicted, or by maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 30 percent rating is assigned if the disability is manifested by FVC 65 to 74 percent of predicted or by DLCO (SB) 56 to 65 percent of predicted. A 10 percent rating is assigned if the disability is manifested by FVC 75 to 80 percent of predicted or by DLCO (SB) 66 to 80 percent of predicted. The General Rating Formula for Restrictive Lung Disease provides the following: A 100 percent disability rating for findings that show Forced Expiratory Volume at one second (FEV-1) less than 40 percent of predicted value, or; the ratio of 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. Finally, Diagnostic Code 6600, for chronic bronchitis, provides the following: A 100 percent evaluation is warranted in cases of FEV-1 less than 40 percent of predicted value; FEV-1/FVC of less than 40 percent; DLCO (SB) of less than 40-percent predicted value; 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 the requirement of outpatient oxygen therapy. A 60 percent evaluation is in order in cases of FEV-1 of 40-to 55-percent of predicted value; FEV- 1/FVC of 40 to 55 percent; DLCO (SB) of 40-to 55-percent of predicted value; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 30 percent evaluation is assigned in cases of FEV-1 of 56- to 70-percent of predicted value; FEV-1/FVC of 56 to 70 percent; or DLCO (SB) of 56- to 65-percent of predicted value. A 10 percent evaluation is warranted in cases of FEV-1 of 71- to 80-percent of predicted value; the ratio of FEV-1/FVC of 71 to 80 percent; or DLCO (SB) of 66-to 80-percent of predicted value. Post-bronchodilator results are to be used unless pre-bronchodilator pulmonary function tests are greater. 38 C.F.R. § 4.97(d)(5) . In determining the proper rating for the lung carcinoma, the Board must first determine if the RO applied the proper effective date for the expiration of the 100 percent rating and if the criteria were met to show the 100 percent rating criteria were no longer met (i.e., that the Veteran had no neoplasms, local recurrences, or metastases of cancer). As noted above, the 100 percent rating shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure; six months thereafter, the claimant is to undergo a mandatory VA examination to determine the degree of any residuals. 38 C.F.R. § 4.97, Diagnostic Code 6819. In the present case, the left upper lobectomy was performed at a private hospital in April 2008. Thereafter, he was seen for periodic post-operative follow-up evaluation, but was no longer receiving any surgical, X-ray, antineoplastic chemotherapy or other therapeutic treatment. He remained negative for any recurrence of carcinoma. In August 2008, the Veteran was afforded a VA examination to assess his current respiratory functioning; however, the RO later determined this examination was inadequate, because it took place less than six months following the lobectomy. The RO rescheduled the Veteran for a February 2009 VA respiratory examination, but VA records indicate he failed to report. Nevertheless, he was afforded a VA general medical examination in November 2008 as part of a periodic health maintenance, and found to have lungs clear to auscultation, without wheezes, rales, or rhonchi. He was noted to be receiving no current chemotherapy or radiation, and a subsequent chest X-ray was negative for any signs of acute disease. A VA respiratory examination was successfully rescheduled for May 2009, and he was afforded pulmonary function test and clinical evaluation. No evidence of acute disease or recurrence of carcinoma was identified. Based on the above, the Board finds the expiration date of September 1, 2009, for the Veteran's 100 percent rating under Diagnostic Code 6819 was proper, as this effective date was both more than six months beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, and followed November 2008 and May 2009 VA examinations which confirmed the absence of any carcinoma recurrence or ongoing acute disease of the respiratory system; thus, the evidence showed that the criteria to continue the 100 percent rating were no longer met (no recurrences or metastases). The Board will next consider whether an evaluation in excess of 10 percent is warranted effective September 1, 2009, and thereafter. Review of the Veteran's VA outpatient treatment records indicate he has been afforded pulmonary function testing on several occasions, including August 2008, May 2009, and April 2013. He was also afforded a private pulmonary function test in April 2008. Review of this clinical data indicates, at worse, FEV-1 of 72 percent in August 2008, FVC of 80 percent in May 2009, FEV-1/FVC of 74 percent in April 2008, and DLCO (SB) of 70 percent in April 2008. None of these results warrants an evaluation in excess of 10 percent under the criteria for restrictive lung disease, interstitial lung disease, or chronic bronchitis. Additionally, these records are negative for any recurrence of lung carcinoma and/or pulmonary tuberculosis, both of which have remained inactive. Thus, an evaluation in excess of 10 percent under any of the above criteria for lung carcinoma of the left upper lobe, status post lobectomy, with moderately advanced chronic inactive pulmonary tuberculosis, is not warranted for any period from September 1, 2009. Finally, because the level of impairment resulting from the lung carcinoma with pulmonary tuberculosis has remained essentially the same for the pendency of this appeal, a staged rating is not warranted. Extraschedular consideration will be discussed below. The Board has also considered the applicability of any other potentially pertinent rating criteria. Because, however, the remainder of the respiratory rating criteria use variations of the pulmonary function testing criteria listed above, evaluation of the Veteran's lung carcinoma with a history of pulmonary tuberculosis under other diagnostic codes would not result in a higher evaluation. The Board has also considered the Veteran's own assertions regarding the degree of impairment resulting from his lung carcinoma with pulmonary tuberculosis. The Board acknowledges that the Veteran is competent to report such observable symptomatology as shortness of breath and other observable respiratory symptoms he experiences via his senses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Additionally, the Board finds the Veteran's accounts of his symptomatology to be credible. Nevertheless, he is not competent to report such clinical data as pulmonary function test results, as this requires objective clinical evaluation and is not subject to mere lay observation. He has also not asserted he was informed of such diagnosis of recurrence of cancer or additional clinical data indicating a recurrence of cancer, or that would warrant a rating in excess of 10 percent. See Jandreau, 492 F.3d at 1372 (states a layperson is competent to report a contemporaneous diagnosis by a doctor). Thus, the Veteran's general assertions regarding the severity of his symptomatology are of less probative value than the mores specific evidence of record that more closely correlates to the diagnostic code criteria, and do not serve as the basis of a higher evaluation. In conclusion, the weight of the evidence is against a disability rating in excess of 10 percent for lung carcinoma of the left upper lobe, status post lobectomy, with moderately advanced chronic inactive pulmonary tuberculosis. Additionally, the Board finds the modification of the disability rating for this disorder, from 100 percent to 10 percent effective September 1, 2009 in accordance with Diagnostic Code 6819, followed the 38 C.F.R. § 3.105(e) due process procedures and was proper. As a preponderance of the evidence is against the award of an increased rating for the residuals of disability in excess of 10 percent from September 1, 2009, the benefit of the doubt doctrine is not applicable in the instant appeal, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for adjudication of an extraschedular rating is warranted. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013). In Thun v. Peake, 22 Vet. App. 111, 115 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. If the schedular rating criteria reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis in the present case, the Board finds that the symptomatology and impairment caused by the Veteran's lung carcinoma with a history of pulmonary tuberculosis is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria for respiratory disorders specifically provide for disability ratings based on a clinical findings, primarily pulmonary function tests. In this case, considering the lay and medical evidence, the Veteran's lung carcinoma with pulmonary tuberculosis are manifested by some reduction in various measurements of respiratory capacity, to include FEV-1, FVC, and DLCO (SB). These symptoms are part of or like or similar to symptoms listed under the schedular rating criteria at 38 C.F.R. §§ 4.97. The schedular rating criteria specifically address the Veteran's respiratory symptomatology, including the his reported shortness of breath and dyspnea with exertion; therefore, referral for an extraschedular evaluation is not warranted. ORDER The expiration of the 100 percent disability rating, effective September 1, 2009, for lung carcinoma of the left upper lobe, status post lobectomy, with moderately advanced chronic inactive pulmonary tuberculosis, was proper. A disability rating in excess of 10 percent for lung carcinoma of the left upper lobe, status post lobectomy, with moderately advanced chronic inactive pulmonary tuberculosis is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs