Citation Nr: 1754940 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-34 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial compensable rating for the residuals of adenocarcinoma of the lung (hereinafter referred to as "lung cancer"). 2. Entitlement to an initial rating higher than 10 percent for fatigue caused by the residuals of lung cancer. 3. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty in the U.S. Navy from October 1969 to September 1977. This appeal to the Board of Veterans' Appeals (Board) is from a September 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In September 2016, the Veteran had a personal hearing with the undersigned VLJ. Thereafter, in November 2016, the Board remanded this claim for additional development. The record suggests the Veteran is unemployable due to his service-connected disabilities. Accordingly, a claim for TDIU has been added for consideration. In this decision, the Board is granting a 60 percent rating for the residuals of his lung cancer. He will also be granted a separate 10 percent rating for dyspepsia, as discussed in more detail below. His fatigue and TDIU claims require additional development, and are REMANDED to the Agency of Original Jurisdiction (AOJ), as set forth in the REMAND section below. FINDINGS OF FACT 1. In resolving doubt in his favor, his pulmonary function test results are entirely due to his service-connected residuals of adenocarcinoma (lung cancer). His Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCB(SB)) is 40 percent predicted. 2. In resolving doubt in his favor, functional dyspepsia has been caused by the treatment for his lung cancer. His symptoms do not cause considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria are met for a 60 percent initial rating for the residuals of adenocarcinoma of the lung. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, DCs 6899-6830 (2017). 2. The criteria are met for a separate initial rating of 10 percent for the residuals of adenocarcinoma of the lung for symptoms analogous to those of hiatal hernia. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.20, 4.97, 4.114, DC 7346 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. 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). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's lung cancer is currently rated noncompensably under DC 6899-6830, which pertains to a lung condition rated analogously to radiation-induced pulmonary pneumonitis and fibrosis. 38 C.F.R. § 4.97; see also 38 C.F.R. § 4.27 (explaining and setting forth the procedure for assigning hyphenated ratings). He has argued that he has separate symptoms that should be compensated, and that he is entitled to a compensable rating. Under DC 6830, the Veteran's symptoms are rated as interstitial lung disease. The General Rating Formula for Interstitial Lung Disease provides that a 10 percent rating is warranted for forced vital capacity (FVC) of 75-80-percent predicted; or, Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (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 40- to 55-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 of 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. The residuals of the Veteran's lung cancer, which consisted of a resection of the left lung (lobectomy), have been rated noncompensably, based on medical opinions that his symptoms are a result of his nonservice-connected COPD, and not the cancer or the lobectomy. The June 2012 VA examiner opined that it would not be possible to determine the contribution of the lung cancer and lobectomy on his pulmonary function tests, as opposed to COPD, but estimated that lung cancer was about 20 percent responsible for his breathing results. Both the October 2016 and the January 2017 VA examiners opined that COPD caused all of his symptoms. The Veteran submitted an April 2017 VA treatment record, wherein his treating physician noted that the lung cancer and lobectomy caused a "clear decline" in the Veteran's functional status, particularly in his DLCO(SB) results, and that at least 30 percent of his disability was a result of the service-connected disability. The evidence is in equipoise as to whether his lung cancer has had an impact on his pulmonary functioning, therefore the Board resolves doubt in his favor, and find that it has. 38 C.F.R. § 4.3. However, despite the attempts of the June 2012 VA examiner and the April 2017 physician to quantify the impact of the lung cancer and lobectomy on his breathing as opposed to COPD, it is not clear to the Board how to apply these opinions to the rating criteria. Accordingly, the Board will again resolve all doubt in his favor and attribute all of his breathing symptoms to his lung cancer and lobectomy. Mittleider v. West, 11 Vet. App. 181 (1998). After a review of the evidence, the Board finds an initial 60 percent rating is warranted for the residuals of adenocarcinoma under DC 6830. 38 C.F.R. § 4.97. The evidence shows that his DLCO(SB) is 40 percent. This meets the criteria for a 60 percent rating. The evidence does not show a lower DLCO(SB), or that his FVC results meet the criteria for a 100 percent rating. Accordingly, a 60 percent initial rating is granted. The Veteran has also complained of having stomach issues causing him to lose weight, and that he has had bloating, discomfort, and belching. He says that these symptoms began while he was being treated with chemotherapy. The record shows he has been diagnosed with functional dyspepsia. The February 2017 VA examiner noted that the Veteran's chemotherapy treatment does cause stomach issues and weight loss. However, he opined that these symptoms "would be expected" to resolve within three months of cessation of the treatment. The examiner also noted that the symptoms began with the Veteran's chemotherapy. Based on this evidence, the Board finds that doubt should be resolved in the Veteran's favor. The examiner agreed that the chemotherapy caused such symptoms, and offered no alternative cause. His opinion appears to indicate the possibility for the symptoms to continue beyond the cessation of the treatment, which, taken with the Veteran's credible statements regarding onset and duration, persuades the Board that equipoise has been reached. Accordingly, the Board is granting a separate 10 percent rating for symptoms that are analogous to the symptoms for hiatal hernia. 38 C.F.R. § 4.20. Under DC 7346, the following ratings apply: a 10 percent rating is warranted for hiatal hernia with two or more of the symptoms for the 30 percent rating of less severity; a 30 percent rating is warranted for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of a considerable impairment of health; and a 60 percent rating is warranted for hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114 , DC 7346. Here, the Veteran has had weight loss, discomfort, and belching, which meets the criteria for a 10 percent rating under DC 7346. The Board does not find that the next higher rating is warranted. Although in September 2016 he complained of pressure in the chest, he has not complained of pain. Further, his stomach and digestive symptoms have not been productive of considerable impairment of health. Indeed, his weight has been slowly increasing. As of November 2016, his weight was 142 pounds, up from 136 during the September 2016 hearing. His treatment records from September 2016 showed only a little constipation and bloating after eating, and that a proton-pump inhibiter was helping with his symptoms. This evidence does not correspond to "considerable impairment," and finds his symptoms more closely approximate the criteria for the 10 percent rating. Id. The Veteran also complained about having throat problems, specifically a hoarseness that has changed the sound of his voice. This was found to have been caused during his lobectomy, and he was granted a 10 percent rating under DC 8210-6516, which pertains to chronic laryngitis. 38 C.F.R. § 4.97. The Board does not find that he is entitled to a higher rating under this code, which requires hoarseness along with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. Id. These symptoms have not been identified by the Veteran's doctors, and he has not alleged their presence. ORDER An initial 60 percent rating is granted for the residuals of adenocarcinoma under DC 6899-6830. A separate initial 10 percent rating is granted under DC 7346 for the residuals of adenocarcinoma. REMAND The Veteran's claim requires still further development. In the Board's previous decision, a separate 10 percent rating was awarded for fatigue under DC 6354, for symptoms analogous to chronic fatigue syndrome (CFS). The Board asked for an updated VA examination for additional evidence in rating his fatigue. The January 2017 VA examination report is inadequate. On remand, an updated VA examination report must be obtained. Further, as discussed above, the record suggests that the Veteran stopped working because of his lung cancer residuals. However, it is unclear when he stopped working. On remand, his inferred claim for TDIU must be developed. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). 2. Schedule the Veteran for an appropriate examination for a report on the current severity of his fatigue. The examiner is asked to review the claims file prior to the examination. The examiner is advised that the Veteran does not have chronic fatigue syndrome but that his fatigue has been rated as analogous to it. The examiner is asked to elicit from the Veteran a detailed history of his fatigue, including his routine activities both pre- and post-illness. Does the Veteran's fatigue restrict his routine daily activities by less than 25 percent of his pre-illness level? Does it restrict activity to 50 to 75 percent of his pre-illness level? Does it restrict his activities to less than 50 percent of his pre-illness level? Has he had any incapacitating episodes, requiring bed rest and treatment from a physician? The examiner is asked to answer the questions with as much detail as possible. 3. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs