Citation Nr: 1340193 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 12-25 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for residuals of lung cancer, status post-thoracotomy and lobectomy, with chronic obstructive pulmonary disease (COPD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which assigned an initial 30 percent rating for residuals of lung cancer, status post-thoracotomy and lobectomy, with COPD. The Veteran appealed that decision by requesting a higher initial rating. A September 2012 rating decision denied the Veteran's claim for a TDIU. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this virtual file were reviewed in conjunction with this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The record here clearly raises such a claim, inasmuch as the Veteran has filed a TDIU claim. But, the Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Therefore, the TDIU claim is being remanded to the RO for adjudication. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran's residuals of lung cancer, status post-thoracotomy and lobectomy, with COPD, were manifested by a FEV-1 of 65 and a FEV-1/FVC of 89. CONCLUSION OF LAW The criteria for an increased evaluation in excess of 30 percent for residuals of lung cancer, status post-thoracotomy and lobectomy, with COPD, are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6819-6604 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including degree of disability and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Here, the Veteran was notified in April 2012 of the evidence and information necessary to substantiate his claim, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and effective date, in accordance with Dingess/Hartman. Therefore, the Board finds that no further notice is required in this case. In any event, it is noted that the Veteran's claim for an increased evaluation follows the initial grant of service connection for this disability. Once a claim of service connection have been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability or assigning an effective date does not trigger additional 38 U.S.C.A. § 5103(a) notice. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). VA's duty to assist includes assisting in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. The Veteran's service treatment records and post-service VA records have been obtained and considered. Further, the Veteran was afforded VA examinations in May and July 2012. Neither the Veteran nor his representative have argued that these examinations are inadequate for rating purposes, and a review of the examination report reveals no inadequacies. For the foregoing reasons, the Board finds that the medical evidence of record is sufficient to decide the Veteran's claim. In the circumstances of this case, a remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran. II. Analysis As noted above, the Veteran is seeking an increased rating after being granted service connection for residuals of lung cancer, status post-thoracotomy and lobectomy, with COPD, in May 2012, at a rating of 30 percent. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). The veteran is currently rated under Diagnostic Code (DC) 6819-6604. DC 6819 assigns a 100 percent disability rating for neoplasms, malignant, for any specified part of the respiratory system exclusive of skin growths. This 100 percent rating is to be continued for six months beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, at which time the appropriate disability rating is to be determined by mandatory VA examination. If there has been no local recurrence or metastasis, the veteran's disability is to be rated on any residuals. The hyphenated diagnostic code in this case indicates that the veteran's lung cancer under DC 6819 is the service-connected disorder, and because there had been no local recurrence or metastasis more than six months following his lobectomy, it is rated in accordance with DC 6604 for its residual COPD. DC 6604 assigns disability ratings based largely on PFT results. This code provides a 30 percent rating when the FEV-1 or FEV-1/FVC score is 56 to 70 percent predicted, or; DLCO (SB) is 56 to 65 percent predicted. A disability rating of 60 percent is assigned for an FEV-1, FEV-1/FVC, or DLCO (SB) score of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating applies when the FEV-1, FEV-1/FVC, or DLCO (SB) score is less than 40 percent predicted; maximum exercise capacity is less than 15 ml.kg/min oxygen consumption (with cardiac or respiratory limitation); cor pulmonale (right heart failure); right ventricular hypertrophy; cor pulmonary hypertension (shown by Echo or cardiac catheterization); episode(s) of acute respiratory failure; or, requires outpatient oxygen therapy. Based on all lay and medical evidence of record, and resolving all reasonable doubt in the Veteran's favor, the Board finds that he is not entitled to an initial rating in excess of 30 percent. The veteran's May 2012 PFT results reflect a FEV-1 of 65 and a FEV-1/FVC of 89; these scores warrant a 30 percent disability rating under DC 6604. These scores do not justify a disability rating in excess of 30 percent. There are no alternative FEV-1, FEV-1/FVC, DLCO (SB), or maximum oxygen consumption scores upon which to base a higher rating. Nor do the veteran's medical records indicate that he required outpatient oxygen therapy. They demonstrate no episodes of acute respiratory failure, and they provide no evidence of cor pulmonale, right ventricular hypertrophy, or cor pulmonary hypertension (shown by Echo or cardiac catheterization) as required for a 100 percent rating. Therefore, DC 6604 does not entitle the veteran to a rating in excess of 30 percent for residuals of lung cancer, status post-thoracotomy and lobectomy, with COPD. The Board notes that the Veteran's June 2012 notice of disagreement contains a statement from the Veteran that he has major breathing problems, chronic fatigue, and unemployability. Similarly, he states that he has severe breathing problems in his VA Form 9. However, the Veteran's breathing difficulties are contemplated by his 30 percent rating. [His TDIU claim is remanded to the RO, as discussed below.] The Board has further considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In short, the Veteran has occupational and social impairment due to the symptoms discussed above, which are contemplated by the rating criteria. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, it is unnecessary to determine whether there are any related factors such as hospitalization or interference with employment. In making this determination, the Board has considered all potentially applicable diagnostic codes, and finds no basis upon which to assign an evaluation in excess of the rating assigned herein for EBV under any alternate code. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Veteran's claim for entitlement to a total disability rating based on individual unemployability due the Veteran's service-connected disability is discussed below. Finally, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against an increased rating in excess of 30. As such, the benefit of the doubt doctrine does not apply, and the Veteran's claim must be denied to this extent. 38 C.F.R. § 4.3. ORDER Entitlement to a rating in excess of 30 percent for residuals of lung cancer, status post-thoracotomy and lobectomy, with COPD, is denied. REMAND The Board finds that additional development is needed on the issue of entitlement to a TDIU. As noted above, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability on appeal. Rice, 22 Vet. App. at 453-54. Here, the Veteran has filed a claim for a TDIU, which the RO denied in a September 2012 rating decision. His entitlement to a TDIU is therefore before the Board. A TDIU may be granted where the schedular rating is less than 100 percent if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16(a). Generally, to be eligible for a TDIU, the following percentage thresholds must be met: if there is only one service-connected disability, it shall be ratable at 60 percent or more; if there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, if these threshold criteria are not met, but the evidence reflects that a veteran is unemployable by reason of service-connected disabilities, the Veteran can receive an extraschedular TDIU. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran does not currently meet the 60 percent threshold for a schedular TDIU, as he is only service-connected for residuals of lung cancer, status post-thoracotomy and lobectomy, with COPD, with a rating of 30 percent. As the Veteran does not qualify for a schedular TDIU, 38 C.F.R. § 4.16(b) is applicable to his case. The Veteran's July 2012 VA examination that addressed the issue of his unemployability was flawed. It first made the statement that the Veteran's service-connected disability renders him unable to maintain and secure substantially gainful employment. That sentence was followed by the statement that it is less likely as not that the Veteran's hypertension renders him unable to secure and maintain gainful employment. Not only are these statements in conflict, but the Veteran is not service connected for hypertension. Accordingly, a new examination is warranted. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007). Upon remand, the Veteran should again be provided with proper notice as to the elements and information necessary to substantiate his inferred claim for a TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16. After development upon remand, if the Veteran does not meet the threshold criteria for a TDIU, and there is evidence of unemployability due solely to service-connected disability, then the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration of a TDIU. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with VCAA-compliant notice concerning his claim for a TDIU. Thereafter, conduct appropriate development for a TDIU. 2. Next, forward the entire claims file to an appropriate VA examiner and schedule the Veteran for an examination as to the effects on employability of the Veteran's service-connected residuals of lung cancer, status post-thoracotomy and lobectomy, with COPD. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the report. The examiner should offer an opinion as to whether the Veteran is unable to secure and maintain substantially gainful employment due solely to his service-connected disability. Consideration should be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the effects of any nonservice-connected disabilities. A complete rationale or explanation should be provided. 3. Thereafter, if there is evidence of unemployability due solely to service-connected disability and the Veteran is not found to meet the schedular threshold criteria for a TDIU for any period on appeal, then the case should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration of a TDIU. 4. After completing any further development as may be indicated by any response received upon remand, readjudicate the claim for a TDIU based on all lay and medical evidence of record. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative, which addresses all relevant law and all evidence associated with the claims file since the last statement of the case. Allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012). Department of Veterans Affairs