Citation Nr: 18150062 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 08-16 305A DATE: November 14, 2018 ORDER A 100 percent initial rating for status post right thoracotomy, right upper lobe, resulting in cavitary carcinoma – squamous cell and chronic obstructive pulmonary disease (COPD) is granted, subject to the regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Army from October 1966 to October 1968. 2. Throughout the entire period on appeal, there is evidence that the Veteran’s lung disability required outpatient oxygen therapy. CONCLUSION OF LAW Throughout the entire period on appeal, the criteria for a 100 percent rating for status post right thoracotomy, right upper lobe, resulting in cavitary carcinoma – squamous cell and COPD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, Diagnostic Code (DC) 6819-6844. REASONS AND BASES FOR FINDINGS AND CONCLUSION Historically, this appeal was most recently denied in an October 2017 Board decision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in May 2018, the Veteran’s attorney and a representative of VA’s Office of General Counsel filed a Joint Motion for Remand. In a June 2018 Order, the Court vacated the Board’s decision and remanded the matter for readjudication in light of the Joint Motion. Of note, the October 2017 Board decision also remanded the issue of entitlement to an effective date prior to March 25, 2013, for the grant of a total disability rating based on individual unemployability (TDIU) and instructed that a Statement of the Case (SOC) be issued. This matter is still pending and development appears to be ongoing. Accordingly, the Board declines to address this matter herein. Increased Rating The Veteran is currently seeking an initial rating greater than 30 percent for his lung disability for the periods prior to February 29, 2012, and after March 24, 2013. The Veteran has been assigned a 100 percent rating from February 29, 2012, to March 24, 2013. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. 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. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Here, the Veteran’s disability has been rating in accordance with DC 6819-6844. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. DC 6819 governs malignant neoplasms of any specified part of the respiratory system. Under this Code, a 100 percent rating continues beyond the cessation of any surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after the discontinuance of such treatment, the appropriate disability rating is determined by mandatory VA examination. If there has been no local recurrence or metastasis, the rating is based on residuals. 38 C.F.R. § 4.97, DC 6819. DC 6844 provides that post-surgical residuals of lobectomy will be rated under the general rating formula for restrictive lung diseases. As such, a rating greater than 30 percent may be warranted upon evidence of the following: • Forced Expiratory Volume in one second (FEV-1) of 40- to 55-percent predicted, or; Forced Vital Capacity (FEV-1/FVC) of 40 to 55 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by Single Breath Method (DLCO (SB)) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardio-respiratory limit) (60 percent); or, • FEV-1 less than 40 percent of predicted value, or; the ratio of FEV-1 to 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 (100 percent). Respiratory disorders rated under DCs 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under DCs 6819 and 6820 will not be combined with each other or with DCs 6600 through 6817 or 6822 through 6847. Rather, a single rating will be assigned under the code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a). As relevant, Pulmonary Function Tests (PFTs) are required to evaluate these conditions. 38 C.F.R. § 4.96(1). Post-bronchodilator studies are required when PFT’s are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38C.F.R. § 4.96(4). When evaluating based on PFT’s, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. 38 C.F.R. § 4.96(5). Upon review of the record, a 100 percent initial rating is warranted for the Veteran’s lung disability. In its October 2017 decision, the Board asserted that the Veteran’s recorded use of oxygen was attributable to his use of a C-PAP machine as treatment for his sleep apnea. The Board distinguished this treatment from the continuous use of oxygen for his lung disability and concluded that a higher rating was not warranted on this basis. In the Joint Motion, the parties agreed that the Board failed to adequately favorable evidence. Evidence listed by the parties included a June 2015 private treatment letter from the Veteran’s physician which stated that the Veteran had required the use of oxygen for the past 10 years “to keep [his] oxygen levels normal.” Moreover, recent testing indicated that the Veteran was “highly qualified to receive oxygen” upon the physician’s conclusion that he did “not see [the Veteran’s] health condition to ever allow him to not use oxygen to support his breathing.” Upon review, the Board places significant probative value to this letter. Additionally, the physician’s assessment is largely supported by the record, including: a March 2009 VA examination reporting the Veteran’s use of both a C-PAP machine and oxygen to treat his breathing problems; a February 2012 VA examination indicating that the Veteran required the use of outpatient oxygen therapy to assist with managing his lung disability; a June 2013 private treatment letter noting that the use of continuous oxygen “much improved” the Veteran’s ongoing symptoms, which also required the use of a C-PAP and oxygen at night; and an April 2016 VA examination recording the Veteran’s intermittent use of home oxygen to aid in breathing as needed. Further, there are no opinions of record which seemingly contradict the private physician’s June 2015 letter. In viewing this evidence in the light most favorable to the Veteran, the Board finds that he requires outpatient oxygen therapy to assist with managing his symptoms. Accordingly, an initial rating of 100 percent for the Veteran’s lung disability is warranted and the appeal is hereby granted. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). M. Donohue Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel