Citation Nr: 1751794 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-32 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a rating in excess of 0 percent for a wedge resection of the right lung middle lobe, for hamartoma, prior to April 25, 2017, and in excess of 30 percent as of April 25, 2017. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel INTRODUCTION The Veteran had active service from October 1954 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In April 2016, the Court granted a Joint Motion for Remand, vacated a June 2015 Board decision, and remanded the case to the Board. In September 2016 and March 2017, the Board remanded the case for additional development. An August 2017 rating decision increased the rating to 30 percent, effective April 25, 2017. Despite the assignment of an increased rating, the full benefits sought have not been granted and the claim for increase remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran was scheduled for a videoconference hearing before the Board. However, in February 2015 written correspondence, the Veteran's representative, on his behalf, cancelled the Board hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Prior to December 20, 2016, benign neoplasms of the right middle lobe of the lung were manifested by problems breathing; pulmonary function test (PFT) results for FEB-1, FEB-1/FVC, and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO(SB)) were all greater than 80 percent predicted. 2. As of December 20, 2016, benign neoplasms of the right middle lobe of the lung were manifested by problems breathing; and DLCO (SB) of 56 to 65 percent of predicted value (57 percent). CONCLUSION OF LAW 1. The criteria for a rating in excess of 0 percent for a wedge resection of the right lung middle lobe, prior to December 20, 2016, were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 6820-6844 (2017). 2. The criteria for a rating in excess of 30 percent, but not higher, for a wedge resection of the right lung middle lobe, for hamartoma were met as of December 20, 2016, but not earlier. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 6820-6844 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor representative has raised any issues with the duty to notify or duty to assist. 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 does not raise them before the Board. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The appeal was remanded in March 2017. The Board directed that the Veteran be scheduled for a VA examination with specific tests to be performed. The record shows there was substantial compliance with the remand directives. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). 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 service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2017). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned 38 C.F.R. § 4.7 (2017). Different ratings may be assigned for separate periods of time if distinct periods are shown by the competent evidence of record during the pendency of the appeal that warrants a different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another provided that VA provides a rationale for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). Rating the same disability under different diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disability is not duplicative of or overlapping with the symptomatology of the other disability. 38 C.F.R. § 4.14 (2016); Esteban v. Brown, 6 Vet. App. 259 (1994). Under the regulations in effect as of October 7, 1996, Diagnostic Codes 6840 through 6845 are rated either under the General Rating Formula for Restrictive Lung Disease, or the primary disorder is rated. The restrictive lung diseases include Diagnostic Code 6840 (diaphragm paralysis or paresis), Diagnostic Code 6841 (spinal cord injury with respiratory insufficiency), Diagnostic Code 6842 (kyphoscoliosis, pectus excavatum, pectus carinatum), Diagnostic Code 6843 (traumatic chest wall defect, pneumothorax, hernia, etc.), Diagnostic Code 6844 (post-surgical residual, e.g., lobectomy, pneumonectomy), and Diagnostic Code 6845 (chronic pleural effusion or fibrosis). 38 C.F.R. § 4.97 (2017). The General Rating Formula for Restrictive Lung Disease provides that Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, 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)) is 66- to 80-percent predicted, is rated 10 percent. 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, is rated 30 percent. 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), is rated 60 percent. 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, is rated 100 percent. 38 C.F.R. § 4.97 (2017). Notes to the General Rating Formula for Restrictive Lung Disease provide further rating guidance. Note (1) provides that a 100-percent rating shall be assigned for pleurisy with empyema, with or without pleurocutaneous fistula, until resolved. Note (2) provides that, following episodes of total spontaneous pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall continue for three months from the first day of the month after hospital discharge. Note (3) provides that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion shall be rated at least 20-percent disabling. Disabling injuries of shoulder girdle muscles (Groups I to IV) shall be separately rated and combined with ratings for respiratory involvement. Involvement of Muscle Group XXI (Diagnostic Code 5321), however, will not be separately rated. 38 C.F.R. § 4.97 (2017). Prior to April 5, 2017 A September 2012 VA examination found that the Veteran had chronic obstructive pulmonary disease and hamartoma of the right middle lobe of the lung, status post resection in 1969. The disability did not require the use of oral or parenteral corticosteroid medications. He used daily bronchodilator therapy, but did not use antibiotics or oxygen therapy. Pulmonary function testing found FVC of 95 percent predicted, FEV-1 of 112 percent predicted, FEV-1/FVC of 114 percent and DLCO of 116 percent. After bronchodilator, the results were FVC of 105 percent predicted, FEV-1 of 137 percent predicted, and FEV-1/FVC of 126 percent. The examiner felt that the FEV-1/FVC result most accurately indicated the level of disability. The examiner also indicated that the results did not accurately indicate the current pulmonary function. The respiratory disability did not impact the Veteran's ability to work. In a November 2012 addendum, the examiner found that the need for bronchodilator was due to COPD, which was not caused by the hamartoma residuals and surgery. In a December 2016 VA examination, the examiner diagnosed COPD and hamartoma of the middle lobe of the right lung, removed by surgery. The examiner noted that pulmonary function testing did not accurately indicate the Veteran's current condition, but the results that most accurately indicated the level of disability was FVC, which was Post-bronchodilator 95 percent. Nonetheless, the Board has taken into consideration all testing performed. The pulmonary function test results before bronchodilator were FVC of 93 percent predicted, FEV-1 of 84 percent predicted, FEV-1/FVC of 87 percent and DLCO of 57 percent predicted. After bronchodilator, the results were FVC of 95 percent predicted, FEV-1 of 74 percent predicted, and FEV-1/FVC of 76 percent. The respiratory disability did not impact the Veteran's ability to work. The DLCO of 57 percent indicates that the Veteran's condition had manifested such that the disability met the criteria for a 30 percent rating as of December 20, 2016. While that examination was remanded for discrepancy within the notes, the pulmonary function test was not indicated as invalid and therefore, those results are deemed valid. The examiner found that oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics, and oxygen therapy were not required. Therefore, the Board finds that the criteria for a higher rating have not been met. The Board finds that the preponderance of the evidence is against the assignment of any higher rating prior to December 20, 2016, as the pulmonary function results prior to that time did not show the required findings for a compensable rating. However, as of December 20, 2016, the criteria for a 30 percent rating, but not higher, were met. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 30 percent rating were met as of December 20, 2016, but not earlier. The preponderance of the evidence is against the assignment of any higher rating or the assignment of the 30 percent rating any earlier. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). As of April 25, 2017 In an April 2017 VA examination, the examiner opined that the Veteran's current reduced lung function was a residual of the lung surgery during service. The examiner noted that the Veteran had reduced lung function, with suggestion of some restriction and obstruction. The examiner noted that the Veteran's pleural density was stable, and that while a lung biopsy could confirm the finding, it would not likely provide any additional useful information and would put the Veteran at risk, as a result it was not performed. The exercise testing was also not performed due to the multiple disabilities and age of the Veteran, as well as his poor exercise tolerance. This examiner used the same pulmonary function test results provided in the December 2016 examination. The examiner noted that a current pulmonary function test was not completed due to the Veteran's disabilities, issues of fatigue, and that the results were not useful to any great extent for testing. Due to age and illness, multiple attempts were not made. The examiner noted that the DLCO most accurately indicated the Veteran's level of disability. The Veteran has not submitted any additional evidence that would lead to entitlement to a higher rating under Diagnostic Code 6845. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 30 percent as of December 20, 2016, and the claim for an increased rating as of December 20, 2016, must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition, the Board finds that the Veteran has not alleged that an extraschedular rating is warranted. The Board finds that all levels of symptomatology are contemplated by the rating criteria for rating restrictive lung disease. Therefore, the Board finds that referral for consideration of the assignment of an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b)(1) (2017); Thun v. Peake, 22 Vet. App. 111 (2008). Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for the increased rating of 30 percent were met at the time of the December 20, 2016, examination, and thus that should be the effective date of the assignment of the 30 percent rating. The Board further finds that the preponderance of the evidence is against the assignment of a schedular rating in excess of 30 percent, and that the preponderance of the evidence is against the assignment of any higher or separate rating. Therefore, the claim for increase in excess of 30 percent as of December 20, 2016, is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to a rating greater than 0 percent for a right lung disability prior to December 20, 2016, is denied. Entitlement to a rating of 30 percent, but not higher, for a wedge resection of the right lung middle lobe, for hamartoma, as of December 20, 2016, but not earlier, is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs