Citation Nr: 1752574 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-03 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a compensable initial disability rating for lung blebs and nodules. 2. Entitlement to a compensable initial disability rating for Gilbert's Disease. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1986 to June 1990 and from August 1992 to March 2011. These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2012 and September 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office. While a Board Central Office hearing was scheduled for July 2017, the Veteran did not report. The notification letter was not returned as undeliverable, and the Veteran has not requested to reschedule the hearing. Accordingly, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2017). FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's lung blebs and nodules were manifested by subjective complaints of chest pain and dyspnea, with relevant test results demonstrating FVC was to at least 92-percent predicted, FEV-1 to at least 96-percent predicted, FEV-1/FVC to at least 81 percent, and DLCO(SB) to at least 92-percent predicted. 2. The probative, competent evidence reflects that, during the period on appeal, the Veteran's Gilbert's Disease was asymptomatic and did not result in functional impairment. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for lung blebs and nodules have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.96, 4.97, Diagnostic Codes 6602-6604, 6825 (2017). 2. The criteria for a compensable disability rating for Gilbert's Disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Codes 7399-7311, 7301, 7312, 7345. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any 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). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Lung Blebs and Nodules 38 C.F.R. §§ 4.96 and 4.97 provide guidance for rating respiratory conditions. The Veteran's lung blebs and nodules are currently rated under 38 C.F.R. § 4.97, Diagnostic Code 6825, for diffuse interstitial fibrosis. However, as the Veteran's disability has also been classified as imaging findings of chronic obstructive pulmonary disease (COPD) or emphysema, the Board will also consider the criteria for rating those disabilities under Diagnostic Codes 6603 and 6604. In that regard, 38 C.F.R. § 4.96(a) provides that ratings under Diagnostic Codes 6603, 6604, and 6825 may not be combined with each other and, as such, a single rating should be assigned under the Diagnostic Code which reflects the predominant disability, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Accordingly, the Board will consider whether a rating under Diagnostic Code 6603 or 6604 may be more appropriate. The criteria under Diagnostic Codes 6603 and 6604 are identical, and are based primarily on pulmonary function tests (PFTs). A 10 percent rating is warranted for an FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO(SB) 66- to 80-percent predicted. A 30 percent rating is warranted for an 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 an FEV-1 of 40- to 55-percent predicted, or; an FEV-1/FVC of 40 to 55 percent, or; a 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 disability rating is warranted for an FEV-1 less than 40 percent of predicted value, or; an FEV-1/FVC less than 40 percent, or; a DLCO (SB) less than 40-percent predicted, or; with maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; with right ventricular hypertrophy, or; with pulmonary hypertension (shown by Echo or cardiac catheterization), or; with episode(s) of acute respiratory failure, or; when outpatient oxygen therapy is required. 38 C.F.R. § 4.97, Diagnostic Codes 6603 and 6604. Diagnostic Code 6825 provides for rating under the General Rating Formula for Interstitial Lung Disease (General Formula). Under the General Formula, a 10 percent rating is warranted for FVC of 75- to 80-percent predicted, or; DLCO(SB) of 66- to 80-percent predicted. A 30 percent rating is warranted for FVC of 65- to 74-percent predicted, or; DLCO(SB) of 56- to 65-percent predicted. A 60 percent rating is warranted for FVC of 50-to 64-percent predicted, or; DLCO(SB) of 56- to 65-percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 100 percent rating is warranted for FVC less than 50-percent predicted, or; DLCO(SB) less than 40-percent predicted, or; maximum exercise capacity less than 15/ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6825. The Rating Schedule contains special provisions for the application of these Diagnostic Codes. PFTs are generally required to evaluate disabilities under these criteria, except when certain circumstances are demonstrated, including when pulmonary hypertension, cor pulmonale, or right ventricular hypertrophy is diagnosed, or when outpatient oxygen therapy is required. 38 C.F.R. § 4.96(d)(1). When the DLCO(SB) test is not of record, alternative criteria for evaluation may be used as long as the examiner states why the test is not useful or valid in the particular case. When PFTs are not consistent with clinical findings, conditions are evaluated based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. 38 C.F.R. § 4.96(d)(3). When evaluating based on PFTs, post-bronchodilator results are required unless pre-bronchodilator studies are normal or when the examiner determines post-bronchodilator studies should not be conducted; post-bronchodilator results are to be used in evaluation unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case, the pre-bronchodilator results should be used for rating purposes. 38 C.F.R. § 4.96(d)(4)-(5). In other words, whichever results are better should be used. When there is a disparity between the results of different PFTs, so that the level of evaluation would differ depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is utilized. 38 C.F.R. § 4.96(d)(6). Finally, if the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation should not be assigned based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96(d)(7). The Veteran first underwent VA examination in connection with his claim in April 2011. The examiner noted pulmonary blebs and nodules which were first discovered in 2006. The Veteran reported symptoms of chest discomfort and shortness of breath. He was not undergoing treatment, including outpatient oxygen therapy, and had no episodes of respiratory failure. Gross inspection of the chest and lungs was normal with no tenderness, and breath sounds were symmetric with no rhonchi, rales, or wheezes. The expiratory phase was within normal limits, and there were no signs of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or chronic respiratory failure. PFTs revealed the following pre-bronchodilator results: FVC of 4.75, or 98 percent predicted; FEV-1 of 3.81, or 101 percent of predicted; and FEV-1/FVC of 3.72, or 94 percent predicted. Post-bronchodilator results were: FVC of 4.45, or 94% of predicted; FEV-1 of 3.86, or 101 percent of predicted; and FEV-1/FVC of 4.84, or 130 percent of predicted. DLCO testing was not conducted because the examiner concluded that the PFT results were sufficient for evaluation and opined that the FEV-1 was most likely to reflect the severity of the Veteran's condition. The examiner noted the results to be normal with no significant change with the use of a bronchodilator, and stated that the Veteran's effort was good. There was no discrepancy between PFTs and the clinical examination. Private treatment records from August and September 2011 reflect that the Veteran reported being very active with weight lifting and other exercises, and that he exercised regularly without any report of dyspnea. There was no history of pneumothorax, and breath sounds were clear. Private PFTs conducted in October 2011 without a bronchodilator yielded the following results: FVC of 4.96, or 95 percent of predicted; FEV-1 of 4.00, or 103 percent of predicted; FEV-1/FVC of 81 percent; and DLCO of 29, or 95 percent of predicted. The interpretation of the studies indicated that there were normal flows, volumes, flow volume loop, and diffusion capacity. The Veteran again underwent VA examination in August 2012. The examiner diagnosed asthma and respiratory blebs and nodules. The Veteran reported symptoms of occasional sharp pains in the chest and sides. The Veteran did not use oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy, but did use inhalational bronchodilators intermittently. The examiner noted that the Veteran's asthma resulted in more than one asthma attack per week, with an average of four attacks or more per week over the past 12 months, with no physician visits for required care of exacerbations or respiratory failure. The examiner noted no cardiopulmonary complications. PFTs yielded the following pre-bronchodilator results: FVC of 4.09, or 92 percent predicted; FEV-1 of 3.44, or 96 percent predicted; and FEV-1/FVC of 84.1 percent. The clinician who conducted the PFTs noted that a bronchodilator was not indicated because the Veteran's FVC and FEV-1 predictions exceeded 81 percent, and also stated that the Veteran's efforts were unsatisfactory. The examiner noted that DLCO testing was not indicated for the Veteran's condition, and opined that the Veteran would have some fatigue with flare-ups of the condition. Chest X-rays were clear. In an April 2013 addendum opinion, the examiner clarified that the Veteran's asthma was unrelated to the lung blebs but, rather, was an entirely separate occurrence. In March 2015, an additional addendum opinion was obtained in order to determine if the Veteran's lung blebs caused COPD. The examiner noted that lung blebs were findings of COPD, otherwise known as emphysema, and as such were a result rather than a cause of COPD. Further private PFTs were conducted in December 2016, and yielded the following pre-bronchodilator results: FVC of 4.69, or 104 percent of predicted; FEV-1 of 3.71, or 102 percent of predicted; and FEV-1/FVC of 79 percent. Post-bronchodilator results were: FVC of 4.63, or 102 percent of predicted; FEV1 of 3.74, or 103 percent of predicted; and FEV-1/FVC of 81 percent. The DLCO was 28.6, or 96 percent of predicted, but 92 percent when adjusted for hemoglobin. The interpretation noted that the PFT did not show any evidence of obstruction based on the GOLD criteria, but showed mild obstruction based on the flow volume loop. There was no significant bronchodilator response, with mild restriction and no evidence of hyperinflation or air trapping. Diffusion capacity was normal. The Veteran most recently underwent VA examination in January 2017. The examiner noted that the Veteran's condition resulted in a very high risk for developing spontaneous pneumothorax, and that he experienced anxiety about this risk and had been advised to undergo a complex thoracotomy to minimize the risk. The Veteran did not use oral or parenteral corticosteroids, inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. The examiner noted that a December 2016 chest X-ray was normal, and opined that, of the December 2016 PFT results noted above, the most accurate reflection of the Veteran's level of impairment was the FVC. Treatment records throughout the period on appeal reflect findings consistent with those noted on examination. The Veteran has reported experiencing severe shortness of breath, chest pains, and a high risk of spontaneous pneumothorax. He asserts that this condition keeps him from doing routine tasks and activities he once enjoyed. Upon review, the Board finds that a compensable rating cannot be granted at any time during the period on appeal. In that regard, the Veteran's PFTs do not reflect a level of compensable impairment under Diagnostic Code 6603, 6604, or 6825, or under any other Diagnostic Codes. At all times they were noted during the period on appeal, and applying the rating instructions noted in 38 C.F.R. § 4.97, the Veteran's FVC was to at least 92-percent predicted, FEV-1 was to at least 96-percent predicted, FEV-1/FVC was to at least 81 percent, and DLCO(SB) was to at least 92-percent predicted; none of these findings would result in a compensable rating, regardless of which Diagnostic Code best reflects the Veteran's level of disability. Furthermore, there was no indication of maximum oxygen consumption of 20 ml/kg/min or less, cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, acute respiratory failure, or outpatient oxygen therapy. Accordingly, the record indicates that the Veteran does not meet the criteria for a compensable disability rating under any of the rating criteria. The Board notes that one examiner reported the Veteran's intermittent use of inhalational bronchodilators. Under 38 C.F.R. § 4.97, Diagnostic Code 6602, for asthma, a 10 percent rating is warranted for such use. However, as noted above, the August 2012 examiner, the only one to note asthma, opined that the condition was not related to the Veteran's service-connected disability; furthermore, it is apparent from the record that the use of bronchodilators was indicated for the treatment of asthma rather than for the treatment of the service-connected disability, which was largely noted to be untreated. Accordingly, the Board cannot grant a compensable rating under 38 C.F.R. § 4.97, Diagnostic Code 6602. The Board also notes the Veteran's complaints of shortness of breath. While the Veteran is competent to report such symptoms, in this case they are not corroborated by the objective test findings. In that regard, the determination of which symptoms are related to pulmonary disease and the extent of the severity of such symptoms requires medical testing and expertise. Thus, as a lay person, the Veteran's opinion as to the objective severity of his symptoms is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As such, the most probative and credible evidence does not show a compensable level of disability. Finally, the Board notes the Veteran's concern regarding the risk of spontaneous pneumothorax. While the Board is sympathetic to the Veteran's concerns regarding the increased risk of this serious complication, it is unfortunately unable to grant an increased rating based on such risk, which does not currently limit the Veteran's function. Should the disability increase in severity or complications develop in the future, the Veteran may file for an increased rating or for service connection of a related disability. Gilbert's Disease The Veteran's Gilbert's Disease is currently rated as noncompensable under 38 C.F.R. § 4.114, Diagnostic Code 7399-7311, for residuals of injury of the liver. Disabilities not specifically addressed in the Rating Schedule are rated by analogy and coded with the first two numbers of the schedule provisions for the most closely-related body part and "99"; the Diagnostic Code used to identify the basis for the evaluation assigned is shown after a hyphen. 38 C.F.R. §§ 4.20, 4.27. Depending on the specific residuals, Diagnostic Code 7311 provides that disabilities are to be separately evaluated under Diagnostic Code 7301 for adhesions of the peritoneum, Diagnostic Code 7312 for cirrhosis of liver, and Diagnostic Code 7345 for chronic liver disease without cirrhosis. 38 C.F.R. § 4.114, Diagnostic Codes 7301, 7312, 7345. Neither peritoneal adhesions nor cirrhosis is present in this case, so Diagnostic Codes 7301 and 7312 are not for application. Diagnostic Code 7345 provides that a noncompensable rating is warranted for nonsymptomatic liver disease. A 10 percent rating is warranted for intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent rating is warranted with daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating is warranted for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating is warranted for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. Finally, a 100 percent disability rating is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.117, Diagnostic Code 7345. A note to Diagnostic Code 7345 specifically clarifies that an "incapacitating episode" as contemplated by the rating criteria means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114, Diagnostic Code 7345, Note (2). The Board will also consider any other potentially applicable Diagnostic Codes. The Veteran first underwent VA examination in connection with this claim in April 2011. The examiner noted that the Veteran had elevated bilirubin levels in the past, but was entirely asymptomatic. The condition did not require any treatment, and resulted in no incapacitation or liver problems of which the Veteran was aware. There was no history of hepatitis, no tenderness to palpation of the abdomen, no liver enlargement, no liver malignancy, and no cirrhosis. All lab values were within normal limits, and the examiner opined that the condition resulted in no functional impairment. The Veteran again underwent VA examination in connection with the claim in January 2017. The examiner noted no change in the Veteran's service-connected diagnosis. There were no signs or symptoms of hyperbilirubinemia or jaundice. The examiner ultimately opined that there was no functional loss as a result of this condition. Conversely, the Veteran has attributed many symptoms to this disability, including: chronic fatigue, tiredness, dizziness, anxiety, nausea, cramping, mild tremors, itchiness, insomnia, diarrhea, joint pain, numbness, tingling, difficulty concentrating, panic attacks, hypoglycemia, intolerance to carbohydrates and other foods, abdominal bloating, sweating, labored breathing, heart palpitations, body aches, weakness, headaches, poor memory, depression, irritability, excessive thirst, chest pain, muscle twitches, cold hands and feet, swollen lymph nodes, panic attacks, mood swings, constipation, indigestion, back pain, dry skin, low body temperature, pale skin, night sweats, poor immune system, sore throat, light sensitivity, and bloodshot eyes. Upon review, the Board cannot find that a compensable rating is warranted. In that regard, while the Veteran has alleged that he experiences many symptoms as a result of this disability, both VA examiners have specifically found that it results in no functional impairment and there is no competent medical evidence to the contrary. In that regard, as noted above, the Veteran is competent to report symptoms, but not to attribute them to a specific etiology. See Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007). While the Veteran reports he has fatigue related to this disability, no examiner has made such a finding. In fact, the Board notes that the Veteran made separate claims for service connection for chronic fatigue syndrome, as well as a psychiatric disorder, as secondary to this disability, both of which were denied and not appealed. Furthermore, there is no competent indication that the Veteran also suffers from malaise and anorexia related to this disability, nor is there any record of incapacitating episodes requiring bed rest and treatment from a physician. There is also no competent indication to relate any of the other claimed symptoms to Gilbert's Disease. Accordingly, as the competent, probative evidence reflects that the Veteran's Gilbert's Disease does not result in functional impairment, entitlement to a compensable disability rating must be denied. To the extent that the Veteran has alleged that these disabilities impact his ability to work, he was awarded a total disability rating based upon individual unemployability in a March 2015 rating decision and did not appeal the effective date assigned. Accordingly, the issue is not currently on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In reaching these conclusions, the Board has considered the assertions of the Veteran as to his symptomatology and the severity of his conditions, but, to the extent the Veteran believes that he is entitled to compensable ratings, concludes that the findings during medical evaluation are more probative than his assertions to that effect. As such, the Board has considered the assertions of the Veteran but has also relied heavily on VA examinations, which duly considered the Veteran's subjective symptoms and do not show limitation of function approximating the criteria for compensable ratings. 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, 28 Vet. App. 366, 369-70 (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 Entitlement to a compensable initial disability rating for lung blebs and nodules is denied. Entitlement to a compensable initial disability rating for Gilbert's Disease is denied. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs