Citation Nr: 1742007	
Decision Date: 09/25/17    Archive Date: 10/04/17

DOCKET NO.  16-02 121	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUE

Entitlement to an initial compensatory evaluation for carcinoma, right lung, resected, in remission (claimed as lung cancer).


REPRESENTATION

Veteran represented by:	Patricia Glazek, Attorney


ATTORNEY FOR THE BOARD

Rachel E. Jensen, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from January 1946 to February 1956, and from March 1956 to February 1966.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

Although the Veteran has respiratory impairment and does require oxygen therapy, the preponderance of the competent medical evidence of record reflects this is due to his emphysema and chronic obstructive pulmonary disease (COPD) and not the service-connected post right upper lung lobectomy residuals.


CONCLUSION OF LAW

The criteria for an initial compensable rating for carcinoma, right lung, resected, in remission, have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.97, Diagnostic Codes (DC) 6819, 6844 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Within the claims file is a March 2017 general authorization and release for private medical records.  However, a request to obtain the records was denied in April 2017 due to an invalid signature on the release.  The Veteran and his representative were informed of the need to submit a properly signed release in order to obtain the records in May 2017.  To date, no additional release has been submitted.  

Although these records may be related to the Veteran's claim, the Board finds that the RO has fulfilled its duty to assist in the development of evidence.  38 C.F.R. § 3.159(c)(1) ("The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records....If necessary, the claimant must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records.").  Additionally, the Veteran submitted the release in response to a development letter sent to him in response to his separate claim for special monthly compensation based on aid and attendance/housebound benefits.  Therefore, any necessary development has been accomplished and appellate consideration of the matter herein decided is not precluded.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (The duty to assist is not always a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence).  

Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

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 for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided.  38 C.F.R. § 4.14 (2016).

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Where the schedular criteria does not provide for a noncompensable rating, such a rating is assigned when the requirements for a compensable rating are not met.  38 C.F.R. § 4.31 (2016).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's service-connected carcinoma of the right lung in remission was assigned an initial noncompensable rating under 38 C.F.R. § 4.97, DC 6844, which pertains to post-surgical residuals.  The Veteran contends that he is entitled to a higher initial disability rating. 

Under 38 C.F.R. § 4.97, DC 6844, post-surgical residuals (lobectomy, pneumonectomy, etc.) are rated in accordance with the criteria set forth in the general rating formula for restrictive lung disease.  The general rating formula provides a 10 percent rating when pulmonary function testing (PFT) shows a forced expiratory volume in one second (FEV-1) that is 71 to 80 percent predicted, or forced expiratory volume/forced vital capacity ratio (FEV-1/FVC) that is 71 to 80 percent, or when the diffusion capacity of carbon monoxide (DLCO) is 66 to 80 percent predicted.  A 30 percent rating is assigned when FEV-1 is 56 to 70 percent predicted, or FEV-1/FVC is 56 to 70 percent, or the DLCO is 56 to 65 percent predicted.  A 60 percent rating is assigned where FEV-1 is 40 to 55 percent predicted, or FEV-1/FVC is 40 to 55 percent, or DLCO is 40 to 55 percent predicted, or when maximum oxygen consumption is 15 to 20 ml/kg/min (with cardiorespiratory limit).  A 100 percent rating is assigned when FEV-1 is less than 40 percent predicted, or FEV-1/FVC is less than 40 percent, or when DLCO is less than 40 percent predicted, or when maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or there is cor pulmonale, or, right ventricular hypertrophy, or, there is pulmonary hypertension as shown by echocardiogram or cardiac catheterization, or where there are episodes of acute respiratory failure, or where outpatient oxygen therapy is required.  See 38 C.F.R. § 4.97, DC 6844. 

Post-bronchodilator studies are required when PFTs are conducted for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that the post-bronchodilator studies should not be done and states why.  38 C.F.R. § 4.96(d)(4) (2016).  When both pre- and post-bronchodilator results are available, the post-bronchodilator results should be applied to the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results.  38 C.F.R. § 4.96(d)(5).

The Veteran underwent a right upper lobe resection or lobectomy for a squamous cell carcinoma in October 1998.  Following a claim for service connection made on February 5, 2004, he was granted a noncompensable rating.  Although the period on appeal only encompasses February 5, 2004, to the present, the period following surgery is discussed briefly as it pertains to the origin of the Veteran's current pulmonary symptoms.

At the time of the surgery, the Veteran displayed a right pneumothorax relating to surgery and subcutaneous emphysema, with no report of pulmonary emphysema, but PFTs showed a moderate decrease in diffusion capacity.  He was sent home with oxygen.  A private medical record from November 1999 contains a diagnosis of COPD.  A progress note in March 2000 indicated oxygen therapy might be discontinued except as needed.  VA medical records indicated that the Veteran was diagnosed with pulmonary COPD/emphysema in 2002.  A September 2002 x-ray examination showed emphysema and only minimal volume loss due to a history of surgery.  The treatment plan for COPD was oxygen therapy as required.  In April 2009, the Veteran reported feeling great, exercising, swimming, hiking, and running, with symptoms of occasional nocturnal dyspnea when not wearing oxygen at night.

An October 2012 VA examination stated that the Veteran had been on oxygen since 1998, with records indicating that he "almost got off oxygen after the carcinoma resection but then in about 2002 pulmonary emphysema became a significant problem and he had to continue use of supplemental oxygen."  The examiner noted that the Veteran's lung carcinoma was considered to be in remission.  A PFT indicated a FEV-1 of 84.4 percent, FEV-1/FVC of 63 percent, and DLCO of 48.3 percent.  The examiner opined that the right upper lobe resection condition "none at all to mildly" impaired sedentary work and mildly impaired physical work.  It was noted that outpatient oxygen therapy was required but that it was predominantly needed because of pulmonary emphysema.

Another October 2012 PFT indicated post-bronchodilator results of FEV-1 of 70 percent predicted and FEV1/FVC of 79 percent predicted.

A February 2014 VA examination determined that the Veteran's cancer itself only involved daughter cells in his right lung.  Referencing several medical treatises, the examiner stated that one of the more effective treatments for emphysematous COPD is lung volume reduction surgery (LVRS), such as the lobectomy that the Veteran underwent.  One medical treatise found that upper lobe emphysema with upper lobectomy was the most effective form of surgical therapy for emphysema and that any COPD benefit was an added benefit.  Another study found that LVRS versus medical therapy in subjects with moderate COPD resulted in overall improved disease-specific quality of life and exercise capacity compared with the medically-managed group.  Another treatise stated that LVRS may improve lung capacity and function in patients with emphysema.   It was determined that it could not be shown whether the Veteran's COPD benefited from the procedure, but that it was less than 50 percent likely to have worsened his COPD.  The examiner also found that it was less than 50 percent likely that the Veteran's COPD was caused by his lung cancer.  He explained that COPD was generalized deterioration of lung tissue (emphysema), and/or chronic generalized irritation of air passages caused by chronic exposure to airborne toxins such as tobacco smoke, or very rarely due to congenital abnormalities.  However, cancers were a genetic defect which began in one cell and caused that cell to replicate out of control.  

A March 2014 VA examination determined that the Veteran's emphysema and COPD were not related to service, including not caused by radiation exposure.  The clinician found that those conditions were more likely related to the Veteran's eighteen-year smoking history than anything that occurred in service, including the few episodes of upper respiratory infections and bronchitis that occurred during active duty as well as radiation exposure.

An addendum opinion in November 2015 was obtained to determine the Veteran's level of impairment due to the 1998 lobectomy versus his diagnosed emphysema.  The clinician concluded that there was no impairment due to the upper lobectomy.  He restated that LVRS was one of the best means of improving lung function in patients with severe emphysema.  He further determined that a chart review showed that the Veteran had no significant decrease in pulmonary function following his lobectomy, and that the deterioration that was indicated occurred gradually, years later.  Finally, he noted that the Veteran's impaired pulmonary function responded to typical COPD medications.

In January 2016, the Veteran submitted an article regarding LVRS that discussed one of the studies the VA examiner had relied upon in his analysis.  The article discussed outcomes from the use of LVRS to treat emphysema.

The Veteran has argued that because he began oxygen treatment in 1998 when the right upper lung was resected and continues use of supplemental oxygen today, that required usage is a residual of the surgery.  However, the Veteran was diagnosed with severe emphysema prior to the lobectomy, and a VA examiner has concluded that any required outpatient oxygen is predominantly needed because of his emphysema.  Thus, the continued use of oxygen has not been determined to be a residual of the lobectomy.

Further, although evidence of respiratory impairment is shown in the PFT results of record, a VA examiner has determined that there was no significant decrease in function following the lobectomy and that deterioration of function occurred gradually years later.  The examiner also found that there was no impairment due to the upper lobectomy.  Therefore, there is no medical evidence of record linking any pulmonary function impairment with the lobectomy.

The Board finds that the examining VA physician possesses the necessary education, training, and expertise to provide a competent medical opinion.  38 C.F.R. § 3.159(a)(1) (2016); Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011).  Further, there is no reason to question the credibility of the opinion.  The examiner has provided a clear rationale, based on an accurate medical and factual history for the opinion provided, as well as review of relevant medical literature.

The Board acknowledges that the Veteran believes his respiratory impairment and required oxygen use are a result of the October 1998 lobectomy, and that therefore, his symptoms warrant a higher initial disability rating.  Although the Veteran's statements are competent to describe his symptoms, as the evaluation of his pulmonary symptoms involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and effect relationship, he is not competent to render such a complex medical opinion regarding evaluation of post-lobectomy residuals.  As such, the question of evaluation in this case may not be competently addressed by lay evidence.  See Layno v. Brown, 6 Vet. App. 465, 469 - 470 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

The Board notes that the Veteran has respiratory impairment, as evidenced by the October 2012 PFT results and VA medical treatment records, and he does require oxygen therapy.  However, the preponderance of the competent medical evidence of record reflects this respiratory impairment and corresponding treatment are due to his emphysema and COPD and not the service-connected post right upper lung lobectomy residuals.  As such, these symptoms are not for consideration in evaluating the Veteran's service-connected lobectomy residuals.   See Mittleider v. West, 11 Vet. App. 181 (1998).  

In view of the foregoing, the Board must find that the preponderance of the evidence is against a finding the Veteran meets or nearly approximates the criteria for a compensable rating under DC 6844.  See 38 C.F.R. 4.7.  

The record does not reflect any other impairment/symptoms of the Veteran's service-connected lobectomy residuals that would warrant consideration of other Diagnostic Code(s).  Additionally, there is no evidence of recurrence of the carcinoma, warranting evaluation under DC 6819.  Moreover, as stated above, DC 6844 is specifically for surgical residuals, and expressly mentions lobectomy.  The Court of Appeals for Veterans Claims (Court) has held that when a condition is specifically listed in the Schedule, it may not be rated by analogy.  Copeland v. McDonald, No. 14-0929 (U.S. Vet. App. June 25, 2015); see also Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating . . . may be assigned only where the service-connected condition is 'unlisted.'").  As such, no additional rating under the Diagnostic Code is warranted.

As the Veteran has not contended, nor does the evidence show that this disability alone renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)."


ORDER

An initial compensatory evaluation for carcinoma, right lung, resected, in remission, is denied.



____________________________________________
Jennifer Hwa
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs