Citation Nr: 1420703	
Decision Date: 05/08/14    Archive Date: 05/21/14

DOCKET NO.  09-41 886	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to an initial rating greater than 30 percent for obstructive lung disease.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from August 1954 to August 1956.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  As addressed more fully below, the Board has rephrased the issue on appeal to reflect that this is an initial rating claim.

In April 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing held at the Phoenix RO.  A transcript of the hearing is associated with Virtual VA, which is an electronic records storage system.

A review of Virtual VA reflects that, after the RO last adjudicated this case in a September 2013 supplemental statement of the case (SSOC), an April 2014 VA Compensation and Pension (C&P) audiology examination report was added to the record.  As this examination report does not contain any evidence pertinent to the issue on appeal, the Board may proceed to adjudicate this case without any prejudice accruing to the Veteran.

The Veteran has reported being prescribed acid reflux medications due to problems caused by medications used to treat his service-connected obstructive lung disease.  The RO should clarify with the Veteran whether he intends to file a service connection claim for acid reflux secondary to medications used to treat service-connected obstructive lung disease.


FINDINGS OF FACT

1.  For the time period prior to October 15, 2009, the Veteran's service-connected obstructive lung disease was manifested by an FEV-1 of 74 percent predicted, an FEV1/FVC of 57 percent, and a DLCO of 94 percent absent the need for monthly visits to a physician for required care of exacerbations, the use of systemic corticosteroids or immuno-suppressive medications, cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure or the need for oxygen therapy.

2.  Beginning on October 15, 2009, the Veteran's service-connected obstructive lung disease was manifested by an FEV-1 of 45 percent, but an FEV-1/FVC greater than 40 percent, a DLCO(SB) greater than 40-percent predicted and no episodes of respiratory failure, use of systemic high dose corticosteroids or immuno-suppressive medications, cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or the need for oxygen therapy. 


CONCLUSION OF LAW

The criteria for an initial disability rating of 60 percent, but no higher, for obstructive lung disease have been met effective October 15, 2009.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Codes (DCs) 6602, 6604 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran seeks a disability rating greater than 30 percent for his service-connected obstructive lung disease.  At the outset, the Board notes that the Veteran filed his original service connection claim on December 8, 2004.  The RO denied this claim in an August 2005 rating decision which the Veteran appealed to the Board.  By decision dated December 2007, the Board awarded a service connection claim for obstructive lung disease. 

By means of a rating decision dated February 25, 2008, the RO awarded an initial 30 percent rating for obstructive lung disease effective December 8, 2004.  This rating was based upon evidence then of record.  On this same day, the RO ordered a contemporaneous VA examination.  See RO Compensation and Pension Exam Form dated February 25, 2008.  By letter dated April 10, 2008, the RO notified the Veteran of its February 2008 rating decision and his appellate rights.

Thereafter, the Veteran underwent VA examination in May 2008, and the RO readjudicated the claim in an August 2008 rating decision.  The Veteran initiated an appeal by written statement received in February 2009.  Here, as the RO received new evidence within one year of the February 2008 initial rating requiring readjudication of the claim, and as the Veteran filed a notice of disagreement within one year of the date of notice of the February 2008 decision, the Board finds that the Veteran has appealed the initial rating assigned for his obstructive lung disease.  

The Duty to Notify and the Duty to Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  The notification requirements are referred to as Type One, Type Two, and Type Three, respectively.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

As discussed above, the Veteran is challenging the initial evaluation assigned following a grant of service connection.  In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  

Here, RO letters dated December 2004, February 2005 and April 2005 advised the Veteran of the types of evidence and/or information necessary to substantiate a service connection claim as well as the relative duties on the part of the Veteran and VA in developing the claim.  A March 2006 RO letter advised the Veteran how VA determines disability ratings and effective dates of award.  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. 

VA has a duty to assist a claimant in the development of a claim.  This duty includes assisting the claimant in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In this case, the Veteran's STRs are unavailable but the absence of such records, pertaining to a time period in the 1950s, is not prejudicial as the issue at hand involves the severity of the Veteran's obstructive lung disease since December 2004.  See Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994) (when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern).

Otherwise, the RO has obtained the Veteran's relevant VA clinic records and the Veteran has submitted private clinic records on his behalf.  At the hearing in April 2014, the Veteran advised the undersigned that all relevant private and VA clinic records had been associated with his claims folder.  There is no evidence that the Veteran has ever filed a disability claim with the Social Security Administration.

The Veteran has been afforded VA C&P examinations in May 2008 and July 2012.  These examinations contain all findings necessary to decide the claim.  The Veteran has supplemented the record with private pulmonary function tests (PFTs) as recent as December 2012.  At a DRO hearing in March 2013, the Veteran declined further VA examination.  At his Board hearing in April 2014, the Veteran testified to a progressive worsening of his pulmonary function but he did not describe a significant worsening since his last VA examination.  Overall, the Board does not find that the lay or medical evidence suggests an increased severity of symptoms to the extent that higher schedular ratings may still be possible. Thus, there is no duty to provide further medical examination on the initial rating claims.  See VAOPGCPREC 11-95 (Apr. 7, 1995).

The Board notes that the Veteran has expressed great frustration concerning the interpretation of his PFT results, and he feels that his VA examinations do not adequately portray his worsening functional limitations.  Overall, the Veteran appears to object to VA's use of post-bronchodilation results in rating his disability, and the use of an adjusted calculation of predicted values for his age group.   He also feels that the rating criteria for evaluating his breathing disorder do not adequately consider his functional limitations.

In simplest terms, the Board can only explain to the Veteran that the Secretary devises the rating schedule according the average impairment of earning capacity for a particular disease or injury, and that neither the Board nor the appellate courts have jurisdiction to review the schedule adopted by the Secretary.  See 38 U.S.C.A. § 7252.  The Board only applies the criteria to the particular facts of a case. 

For the most part, VA evaluates PFT results based upon post-bronchodilation results.  See 61 Fed. Reg. 46720 (Sept. 5, 1996).  In so deciding, VA noted that The American Lung Association/American Thoracic Society Component Committee on Disability Criteria had recommended testing for pulmonary function after optimum therapy based upon reasoning that the results of such tests reflected the best possible functioning of an individual and were the figures used as the standard basis of comparison of pulmonary function.  It was also noted that using post-bronchodilation results would assure consistent evaluations.  Id. at 46723. 

Notably, VA amended the rating schedule concerning respiratory conditions, effective October 6, 2006, to clarify the use of PFTs in evaluating respiratory conditions.  See 71 Fed. Reg. 52457 -01 (Sept. 6, 2006).  A new paragraph (d) to 38 C.F.R. § 4.96, titled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845" has seven provisions.  PFTs are required to evaluate respiratory conditions except in certain situations.  If a DLCO (SB) test is not of record, evaluation should be based on alternative criteria as long as the examiner states why the DLCO(SB) test would not be useful or valid in a particular case. 

When the PFTs are not consistent with clinical findings, evaluation should generally be based on the PFTs.  Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes with some exceptions; when evaluating based on PFTs.  Post-bronchodilator results are to be used unless they are poorer than the pre-bronchodilator results, then the pre- bronchodilator values should be used for rating purposes.  When the results of different PFTs (FEV-1, FVC, etc.) are disparate, the test result that the examiner states most accurately reflects the level of disability should be used for evaluation, and if the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio should not be assigned. 

In issuing the final rule for section (d) above, VA noted that the regulations did not require that a maximum exercise capacity test be conducted in any case.  Notably, VA stated that the test was not routinely conducted and not even available in some medical facilities.  Rather, the standard of measure could provide an alternative to an increased rating if already available of record.  71 Fed. Reg. at 52458.

Thus, while sympathetic to the Veteran's arguments, the Board has no authority to alter the rating criteria or his PFT calculations.  Thus, the Board finds no examination deficiencies which can be corrected based on the Veteran's arguments.  As addressed below, the Veteran's private PFT results contain post-bronchodilator readings and may be accepted as evidence supportive of his claim.  The Board further notes that the private PFT reports do not fully provide the calculated results for FEV1 percentage for post-bronchodilator readings.  The Board has calculated these results by dividing the actual post-bronchodilator readings from the predicted value in the adjudication of the claim.  Cf. Kelly v. Brown, 7 Vet. App. 471 (1995) (stating that as fact-finding is a proper function of the Board, the Board is permitted to interpret the graphical representations contained in the audiograms into numerical results).

Finally, the provisions of 38 C.F.R. § 3.103(c)(2) require that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  At the hearing in April 2014, the undersigned explained as follows: "[i]n the case of increased rating, which is the issue that you have pending or you have on appeal, all you need to demonstrate is that the condition is now much worse than what the 30 percent rating represents and that's what we're going to try to do during the hearing and we'll try to assist you to see if there is a possibility that we could give you a higher rating."  The undersigned also interviewed the Veteran to determine whether there was any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim.  Moreover, testimony was elicited from the Veteran regarding his symptomatology and functional limitations which is a central question on appeal.  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. 

Overall, the Board finds that the evidence of record is sufficient to decide the claim on appeal, and that there is no reasonable possibility that any further assistance would aid in substantiating this claim.  Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim.  Hence, no further notice or assistance is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Legal Criteria

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where there is a question as to which of two evaluations shall be applied, the higher rating 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.

If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded).  Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

The Veteran is service-connected for obstructive pulmonary disease which has an asthma component.  Respiratory disorders are evaluated under DCs 6600 through 6817 and 6822 through 6847.  Pursuant to 38 C.F.R. § 4.96(a), ratings under these diagnostic codes will not be combined with each other.  Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation only where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.96(a). 

The Veteran is currently rated under 38 C.F.R. § 4.97, DC 6602.  DC 6602 pertains to bronchial asthma and provides for a 10 percent rating where forced expiratory volume in one second (FEV-1) is 71- to 80- percent predicted; or if the FEV-1 to forced vital capacity (FVC) ratio is 71 to 80 percent; or intermittent inhalational or oral bronchodilator therapy.  A 30 percent evaluation requires FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. 

Under DC 6602, a 60 percent evaluation requires FEV-1 of 40 to 55 percent predicted, or FEV- 1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. 

A 100 percent evaluation requires FEV-1 less than 40 percent predicted, or; FEV-1/FVC less than 40 percent, or; there is more than one attack per week with episodes of respiratory failure, or required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 

DC 6604 pertains to chronic obstructive pulmonary disease (COPD).  The current 30 percent rating contemplates FEV-1 of 56- to 70-percent predicted; or FEV- 1/FVC of 56 to 70 percent; or DLCO (SB) of 56- to 65-percent predicted. 

Under DC 6604, the next higher 60 percent rating requires 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 cardiorespiratory limit). 

A 100 percent rating requires FEV-1 less than 40 percent predicted; or FEV-1/FVC less than 40 percent; or DLCO(SB) of less than 40-percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiorespiratory limitation); or cor pulmonale (right-sided heart failure); or right ventricular hypertrophy; or pulmonary hypertension (shown by echo or cardiac catheterization); or an episode or episodes of acute respiratory failure; or oxygen therapy. 

Historically, the available records reflect that the Veteran has been evaluated for breathing problems since the 1970s.  His PFTs demonstrated an obstructive lung disease while his chest x-rays were significant for linear fibrosis in the left lung base.  A PFT in March 2004 was interpreted as showing mild to moderate obstruction with some probable mild asthma.  At that time, the Veteran described an exercise capacity of hiking 4 to 8 miles 4 to 5 times per week, swimming and skiing.  He was prescribed Advair and albuterol inhaler therapy.  A PFT in May 2004 demonstrated post-bronchodilator readings of FEV-1 of 64 percent predicted (3.42/4.21) and an FEV-1/FVC of 62 percent.

The Veteran filed his original service connection claim on December 8, 2004.  In pertinent part, a November 2005 physician statement described the Veteran as having pulmonary scarring and fibrosis in his left lateral lung which had been attributable to military service.  His PFT testing was described as showing a moderate obstruction in expiratory flow which could not be reversed with bronchodilating medications.

At a Board hearing in April 2007, the Veteran described having a 25 percent loss of air capacity with heavy breathing and a lack of air capacity when performing strenuous activity.

The Veteran underwent VA C&P examination in May 2008.  At that time, the Veteran reported a morning cough productive of white sputum absent hemoptysis and anorexia.  He had dyspnea on exertion and at rest which was always clinically active and slowly, progressively increasing.  He did not have attacks.  He had been prescribed medications without any side effects or periods of incapacity requiring bed rest by a physician.  Physical examination was negative for cor pulmonale, right ventricular or pulmonary hypertension, or weight change.  There had been no restrictive lung disease such as kyphoscoliosis, pectus excavatum, or the like.  The examiner diagnosed idiopathic obstructive ventilatory impairment (asthma) with associated restrictive disease associated with left lower lobe atelectasis.  PFT testing demonstrated post-bronchodilator readings of an FEV-1 of 74 percent predicted, an FEV1/FVC of 57 percent, and a DLCO of 94 percent.

In a statement received in May 2009, the Veteran reported taking Formoterol Fumate, Flunisolide, Ipratropium Bromide and Albuterol for his breathing problems.  He had also been prescribed Ranitidine HCL due to extreme acid reflux problems caused by his breathing medications.

A PFT conducted by the Mayo Clinic on October 15, 2009 demonstrated post-bronchodilator readings of an FEV-1 of 45 percent predicted (1.38/3.08), an FEV1/FVC of 50 percent, and a DLCO of 75 percent.  

On VA C&P examination in July 2012, the Veteran described a progressive worsening of his breathing difficulties with dyspnea after one flight of stairs.  He needed to use albuterol when walking for 1/2 mile.  He denied any major events such as emergency room or urgent medical visits.  He did not require the use of oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics or oxygen therapy but he did require daily use of inhaled medications.  He had not had any asthma attacks or exacerbations within the past 12 months.  A PFT showed post-bronchodilator readings of an FEV-1 of 63 percent predicted, an FEV1/FVC of 57 percent, and a DLCO of 83 percent.

A Mayo Clinic PFT conducted in December 2012 showed post-bronchodilator readings of an FEV-1 of 66 percent predicted (1.71/2.60), an FEV1/FVC of 56 percent, and a DLCO of 84 percent.

At an RO hearing in March 2013, the Veteran described a deterioration of his physical capacity over the last few years.  He could no longer perform activities such as walking a couple of miles or shoveling snow.

In a statement received in October 2013, the Veteran described losing his ability to perform normal physical activities over the last three years.  For example, he had to stop climbing stairs at 6 steps to catch his breath.

At his Board hearing in April 2014, the Veteran essentially argued that his obstructive lung disease symptoms had drastically worsened in the past 5 years, and that such worsening was not reflected in his disability rating which had remained the same.  For example, he could no longer walk up a flight of stairs without the need for stopping and catching his breath as he was capable 5 years previous.  He could no longer perform yardwork, climb ladders or carry items without losing his breath.  Yet, he noted that his PFT results were interpreted as showing improvement due to calculating his predicted values based upon his age group.  He described himself as very limited as compared to 5 to 10 years previous with a 50 percent breathing capacity.

Applying the criteria to the facts of this case, the Board finds that the criteria for a rating greater than 30 percent for service-connected obstructive lung disease have not been met for any time prior to October 15, 2009.  In this respect, the credible lay and medical evidence demonstrated that the Veteran's service-connected obstructive lung disease was manifested by an FEV-1 of 74 percent predicted, an FEV1/FVC of 57 percent, and a DLCO of 94 percent absent the need for monthly visits to a physician for required care of exacerbations, the use of systemic corticosteroids or immuno-suppressive medications, cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure or the need for oxygen therapy. 

For this time period, the most relevant evidence consists of the results from the May 2008 VA C&P examination wherein PFT testing demonstrated an FEV-1 of 74 percent predicted, an FEV1/FVC of 57 percent, and a DLCO of 94 percent.  These results were consistent with prior private PFT testing in May 2004 which the Veteran's private examiner described as showing a moderate obstruction in expiratory flow.  Notably, the actual results from the May 2004 PFT showed post-bronchodilator readings of an FEV-1 of 65 percent predicted and an FEV1/FVC of 62 percent.  There was no lay or medical evidence of the need for monthly visits to a physician for required care of exacerbations, the use of systemic corticosteroids or immuno-suppressive drugs, cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure or the need for oxygen therapy.

On October 15, 2009, the Veteran underwent a private PFT which was interpreted as showing an FEV-1 of 45 percent predicted.  There is no indication from this report that the testing results were not deemed valid.  As such, the Board finds that the Veteran met the criteria for a 60 percent rating under DC 6602 effective to the date of the October 15, 2009 PFT results.

Notably, the Board cannot factually ascertain that the Veteran's obstructive lung disease met the criteria for a 60 percent rating prior to October 15, 2009.  The Veteran has credibly reported a progressive worsening of symptoms during the appeal period, including his perception of a 25 percent loss of breathing capacity at an April 2007 Board hearing.  The Board places greater probative weight to the objective and more precise measurements of lung capacity by PFT testing which, by the record, does not show that the Veteran met the criteria for a rating greater than 60 percent prior to the October 15, 2009 PFT testing.  

The Board also acknowledges the Veteran's argument that his FEV/FVC of 57 percent on VA examination in May 2008 was only 2 percentage points away for meeting the criteria for a 60 percent rating.  Notably, the PFT testing accurately measures the Veteran's respiratory capacity and contemplates the types of functional limitations associated with such findings.  Given the specificity of the rating criteria, the Board cannot find that the Veteran's test results more closely approximated the criteria for a higher rating prior to October 15, 2009.

Following the October 15, 2009 PFT, the Veteran's private and VA PFT results demonstrate improved results in FEV1, FEV1/FVC and DLCO(SB) despite the Veteran's credible reports of an overall worsening of his functional capacity.  Resolving reasonable doubt in favor of the Veteran, the Board finds that his obstructive lung disease disability did not improve after the October 15, 2009 PFT testing and, as such, the Board finds that the criteria for a 60 percent rating should be applied for the entire appeal period after October 15, 2009 (rather than applying a reduction in a staged rating).

Further applying the criteria to the facts of this case, the Board finds that the criteria for a rating greater than 60 percent have not been met for any time since October 15, 2009.  In this respect, the Veteran's PFT testing revealed an FEV1 of no worse than 45 percent predicted, an FEV-1/FVC greater than 40 percent and a DLCO(SB) greater than 40-percent predicted.  There is no lay or medical evidence of the need for monthly visits to a physician for required care of exacerbations, use of systemic corticosteroids or immuno-suppressive medications, cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure or the need for oxygen therapy.

Furthermore, the Veteran's medical records do not contain any finding for maximum exercise capacity.  As indicated in the final rule for adopting the current criteria, this is an alternative standard of measure to be considered only if available of record.  71 Fed. Reg. at 52458.

In so holding, the Board finds that the Veteran has credibly described lack of breathing and exercise capacity due to his service-connected obstructive lung disease.  His description of functional limitations have been relied upon, in part, to assign a 60 percent rating for the entire appeal period since October 15, 2009 despite improved PFT test results.  However, the Board places greater probative value on the measurements of his pulmonary capacity by a more accurate and objective measure of PFT testing as well as the other clinical findings by VA physicians who have greater training and expertise than the Veteran in evaluating a pulmonary disorder.

To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station 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.  38 C.F.R. § 3.321(b)(1).

The provisions of 38 C.F.R. § 3.321(b) state as follows: 

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.  

If the RO or the Board finds that the schedular evaluation does not contemplate the 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 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.  

VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule.  See VAOPGCPREC 6-96 (Aug. 16, 1996).

In Thun, the Court further explained that the actual wages earned by a particular veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability.  The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. 

The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

The Board finds that all aspects of the Veteran's obstructive lung disease are adequately encompassed in the assigned schedular ratings.  In this respect, the criteria of DCs 6602 and 6604 measure exercise capacity with PFT testing, and the severity of the overall disease with consideration of the type(s) of treatment needed and impact on other aspects of the cardiorespiratory system.  The Veteran's primary complaints of breathing difficulty with limited exercise capacity are measured under these different considerations.  Notably, higher schedular ratings are available but the Veteran does not meet, or more closely approximate, those criteria.  The Veteran has referred to a secondary acid reflux disorder which has been referred to the RO for appropriate action.

In summary, the Board finds that all credibly demonstrated symptomatology and impairment of due to obstructive lung disease has been adequately considered in the assigned schedular evaluations.  As such, there is no basis for extraschedular referral in this case.  See Thun, 22 Vet. App. 111, 114-15 (2008).

Finally, the Veteran has not alleged, and the evidence does not reasonably suggest, that his obstructive lung disease renders him unable to obtain and maintain substantially gainful employment.  Thus, a claim of entitlement to a total disability rating based upon individual unemployability (TDIU) has not been reasonably raised during the appeal period.  See generally Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).


ORDER

A 60 percent rating for obstructive lung disease is granted effective October 15, 2009.



____________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs