Citation Nr: 1514115 Decision Date: 04/01/15 Archive Date: 04/09/15 DOCKET NO. 10-13 581A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating in excess of 30 percent for the residuals of bilateral pulmonary emboli. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran & his spouse ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1984 to November 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in April 2011, December 2013 and April 2014 for further development. Specifically, the Board directed that a VA examiner address whether the Veteran's shortness of breath can be measured by a pulmonary function test or by an exercise capacity test, and whether the service-connected residuals of his pulmonary emboli impact the Veteran's ability to work. See December 2013 & April 2014 Board Remands. These questions were addressed in an April 2014 VA examination. As such, the Board finds that there has been substantial compliance with its prior remand orders and the Veteran is not prejudiced by resolution of his claim on the merits. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). In August 2011, the Veteran was afforded a hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the hearing is of record. In December 2014, the Veteran was notified of his right to request another, optional, Board hearing. See December 2014 Notification Letter. The Veteran has not requested a new hearing. As such, the Board may proceed to a decision without any further hearing. The Board has reviewed all pertinent evidence in the Veteran's claims file, which has been converted in its entirety to an electronic record as part of VA's paperless Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. Throughout the appeal period the Veteran's residuals from his bilateral pulmonary emboli have included restrictive lung disease and shortness of breath on exertion, but he has not shown a FEV-1 or DLCO (SB) of 55% predicted or less, nor has his FEV-1/FVC ratio been 55 percent or less, nor has his maximum oxygen consumption been 20 ml/kg/min or less. 2. At no point during the appeal period has the Veteran shown evidence of primary pulmonary hypertension, right ventricular hypertrophy, cor pulmonale or acute respiratory failure, or been treated with anticoagulant therapy, surgical insertion of an inferior vena cava filter, or outpatient oxygen therapy. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for the residuals of bilateral pulmonary emboli are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321(b) (1), 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Codes 6600, 6817, 6844 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). The Veteran's claim arises from disagreement with the initial disability rating that was assigned following the grant of service connection. Courts have held that 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). VA also has a duty to assist the Veteran in the development of the claim. Relevant to the duty to assist, the Veteran's service treatment records and post-service treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was examined by VA in connection with his respiratory condition claim in December 2008, May 2010, February 2014 and April 2014. The Board finds that these VA examinations and the medical opinions, taken together, are sufficient evidence for deciding the claim. The reports are adequate because they are based upon consideration of the Veteran's prior medical history and describe his disability in sufficient detail so that the Board's evaluation is a fully informed one. Additionally, all opinions are supported by a factual basis and a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not alleged that his disability has worsened in severity since his most recent examination, and the record does not indicate that his symptoms have worsened. Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claim for a higher initial rating and no further examination is necessary. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). In August 2011, the Veteran and his wife testified at a hearing before a VLJ who is no longer with the Board. The VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating, and also sought to identify any pertinent evidence not currently associated with the claims file. Additionally, the Veteran and his wife volunteered testimony concerning his treatment history and symptoms. Neither the Veteran nor his representative has identified any prejudice in the conduct of any of the hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the VLJ conducting the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran has not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide his claim. As such, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim for an increased initial rating. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to a decision. II. Higher Initial Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Diagnostic Codes (DCs) 6817, 6844 and 6600 The Veteran's bilateral pulmonary embolism has been rated under 38 C.F.R. § 4.97, DC 6817, applicable to pulmonary vascular disease. The criteria of DC 6817 specifically reference pulmonary embolism. Under DC 6817, when the disease is asymptomatic, following resolution of pulmonary thromboembolism, a noncompensable rating is assigned. A 30 percent rating is assigned when there is symptomatic pulmonary vascular disease, following resolution of acute pulmonary embolism. A 60 percent rating is assigned when there is chronic pulmonary thromboembolism requiring anticoagulant therapy, or following inferior vena cava surgery without evidence of pulmonary hypertension or right ventricular dysfunction. The maximum 100 percent rating is assigned when there is primary pulmonary hypertension; or chronic pulmonary thromboembolism with evidence of pulmonary hypertension, right ventricular hypertrophy, or cor pulmonale; or pulmonary hypertension secondary to other obstructive disease of pulmonary arteries or veins with evidence of right ventricular hypertrophy or cor pulmonale. A note to the Rating Schedule indicates that other residuals following a pulmonary embolism should be evaluated under the most appropriate rating code, such as chronic bronchitis (DC 6600) or chronic pleural effusion or fibrosis (DC 6844). In this case, the Veteran argues that his bilateral pulmonary emboli have resulted in restrictive lung disease as a result of "dead" tissue in his lungs and that as such, he should be rated as though he has lost part of his lung. See Hearing Tr. at 18. Such claims would be rated as a restrictive lung disease. See 38 C.F.R. § 4.97, DC 6844. Under General Rating Formula for Restrictive Lung Disease (DCs 6840 through 6845), a 10 percent rating is warranted for FEV-1 of 71 to 80 percent predicted, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) 66 to 80 percent predicted. The next higher rating, 30 percent, is warranted 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 60 percent rating is warranted 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 cardiorespiratory limit). A 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value, or; 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. 38 C.F.R. § 4.97, DC 6844. The criteria under DC 6600 mirror those under DC 6844. The Board finds that the Veteran's disability picture has more nearly approximated the 30 percent rating under DC 6817 throughout the appeal period. The Veteran has been diagnosed with pulmonary vascular disease and large perfusion defect involving the superior segment of the right lower lobe, posterior segment of the right upper lobe and anterior segment of the left upper lobe. See November 2002 V/Q Scan Results; see also July 2009 Notice of Disagreement; December 2008, May 2010, February 2014 & April 2014 VA Examination Reports. He has further been diagnosed with restrictive lung disease. See December 2008 PFT Study; see also December 2008 VA Examination Report Addendum, May 2010 VA Examination Report. Throughout the appeal period, his disability picture has been marked by restrictive lung disease as a result of "dead" tissue in his lungs, manifested by shortness of breath during minimal exertion which severely restricts physical activity. See id. The Veteran reported that he gets short of breath walking up inclines or upstairs. See Hearing Tr. at 15; see also April 2014 VA Examination Report. Despite these findings, at no point during the appeal period has the Veteran's FEV-1 or DLCO (SB) been 55% predicted or less, nor has his FEV-1/FVC ratio been 55 percent or less. See December 2008, May 2010, February 2014 & April 2014 VA Examination Reports; see also December 2008, August 2009, May 2010 & January 2014 PFT Studies. The Board notes that the December 2008 VA examiner stated that post-bronchodilator testing was not performed because the pre-bronchodilator test was within normal limits. See December 2008 VA Examination Report. Nevertheless, the December 2008 PFT test results are of record, and show that post-bronchodilator testing was completed with a FEV-1 of 58% predicted, a FVC of 47% predicted and a FEV-1/FVC of 100%. See December 2008 PFT Study. Furthermore, there is no evidence that the Veteran's maximum oxygen consumption has been 20 ml/kg/min or less at any point during the appeal period. Although the Veteran's maximum oxygen consumption was not tested, the April 2014 examiner estimated his maximum oxygen consumption to be 25.35 ml/kg/min using the Uth, Sorensen, Overgaard, Pedersen formula. See April 2014 VA Examination Report. Finally, the evidence shows that the Veteran has not had pulmonary hypertension, right ventricular hypertrophy, cor pulmonale, or episodes of acute respiratory failure at any point during the appeal period, nor has he had inferior vena cava surgery or required anticoagulant therapy or outpatient oxygen therapy. See December 2008, May 2010, February 2014 & April 2014 VA Examination Reports. The Veteran argues generally that the April 2014 VA examination is inadequate because it was performed by a physician's assistant rather than a pulmonary doctor. See October 2014 Statement in Support of Claim; see also October 2014 Informal Hearing Presentation. In making this argument, he does not point to any area of the examination that he believes was inadequately performed. Instead, he argues that the examiner does not have the requisite knowledge to give opinions concerning pulmonary medicine. Specifically, he argues that the examiner's opinion that his abnormal findings regarding his functional residual capacity volume and expiratory reserve volume are related to his age and weight is flawed. See October 2014 Appellate Brief at 1; see also October 2014 Written Statement. The Board finds that the Veteran's contention that the examiner was not competent to perform the examination and that further medical testing was necessary is without merit. The Board points out that the Veteran is not competent to determine which tests were necessary to evaluate the severity of this disability because that determination requires competent medical evidence that must be provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." 38 C.F.R. § 3.159(a)(1) (2014); see also Jandreau. Further, to the extent the Veteran challenges the examiner's credentials, the Board notes that there is a presumption that VA has properly chosen a person who is qualified to provide a medical opinion in a particular matter. See Parks v. Shinseki, 716 F.3d 581 (Fed. Cir. 2013), (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed.Cir.2011)); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009). As such, the Board concludes that VA can rely on the findings and conclusions contained in the April 2014 VA examination report and that the examination report is adequate for rating purposes. The Board further finds that the opinions provided by the April 2014 VA examiner are highly probative. As noted above, the opinions are based on a review of the Veteran's medical history and a physical examination. Additionally, a detailed rationale is provided for all opinions expressed. The Board further notes that the opinions provided by the April 2014 VA examiner are extremely detailed, based on scientific principles, and explained logically. Moreover, the Board notes that the applicable rating criteria as set forth above consider objective findings and test results. The Veteran does not argue that the April 2014 examiner inaccurately performed any objective testing. With regard to the examiner's opinion that his functional residual capacity volume and expiratory reserve volume findings were related to his age and weight, the Board does not rely on such an opinion in making its decision. Instead, the Board assumes that all test results show findings related to the residual symptoms he experiences as a result of his earlier pulmonary emboli. As such, the Board finds the April 2014 VA examination to be adequate. The Board has also considered the Veteran's argument that the PFT tests do not adequately characterize his level of disability because they are performed while he is at rest, and his shortness of breath is most pronounced during activity. See Hearing Tr. at 17. However, the Board noted that his estimated maximum oxygen consumption was 25.35 ml/kg/min based on the functional capacity testing, which measures the maximal capacity of an individual to perform aerobic work as defined by his or her oxygen consumption. See April 2014 VA Examination Report. Additionally, the evidence of record shows that the PFT are a group of tests that measure how well the lungs take in and release air and how well they move gases such as oxygen from the atmosphere into the body's circulation. Thus, the Board finds that it is proper to consider the Veteran's PFT results in determining the appropriate rating for the residuals of his pulmonary emboli. In sum, the preponderance of the evidence is against the claim for an initial schedular rating in excess of 30 percent for service-connected residuals of bilateral pulmonary emboli marked by restrictive lung disease. The Veteran does not meet the criteria for a higher rating under DC 6817 or DC 6845. There is no doubt to be resolved, and a higher initial schedular rating is not warranted. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014). Extraschedular Consideration/Unemployability VA must refer a claim for consideration of an extraschedular rating where a veteran's service-connected disabilities present an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2014). The threshold element for an extraschedular rating, "an exceptional disability picture," is met where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disabilities. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The evidence shows that the Veteran's residuals of pulmonary emboli do not warrant referral for an extraschedular rating because the schedular rating criteria reasonably contemplate all of his symptoms. Multiple rating criteria contemplate his degraded pulmonary function, with higher ratings available for more frequent or more severe symptoms. Additionally, his shortness of breath and limitation in activity are contemplated quantitatively in the PFTs. Moreover, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all of the service-connected disabilities experienced. Here, there is no indication that any service connected impairment is not contemplated by the schedular criteria. Finally, the Board finds that the record does not reasonably raise the issue of whether the Veteran is incapable of obtaining and maintaining substantially gainful employment due to his service connected disabilities. According to Rice v. Shinseki, 22 Vet. App. 447 (2009), a Veteran's claim for a higher rating may require a determination as to whether he is entitled to a total disability rating based on individual unemployability (TDIU). In the instant case, the record clearly shows that the Veteran is still working and has not claimed he is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. Accordingly, the Board finds that the issue of TDIU has not been reasonably raised by the record and thus is not within the scope of the appeal. ORDER Entitlement to an initial rating in excess of 30 percent for the residuals of bilateral pulmonary emboli is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs