Citation Nr: 18152972 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 10-33 383 DATE: November 27, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected pleurisy, right chest, secondary to pulmonary embolus is denied. Entitlement to service connection for a low back disability, to include as secondary to service-connected pleurisy, right chest, secondary to pulmonary embolus is denied. FINDINGS OF FACT 1. The competent evidence of record does not demonstrate 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. 2. The competent evidence of record demonstrates that the Veteran’s low back disability is neither proximately due to nor aggravated beyond its natural progression by his service-connected pleurisy, right chest, secondary to pulmonary embolus and is not otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for pleurisy, right chest, secondary to pulmonary embolus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6899-6845. 2. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1964 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2007 rating decision. In November 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. In March 2015, February 2016, and November 2017, the Board remanded these issues for further development. That development having been completed, the issues have returned to the Board. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. See 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to a disability rating in excess of 10 percent for service-connected pleurisy, right chest, secondary to pulmonary embolus is denied. The Veteran’s service-connected pleurisy is rated under Diagnostic Code 6899-6845. Diagnostic codes 6840 through 6845 are rated under the General Rating Formula for Restrictive Lung Disease. Under the General Rating Formula, a 30 percent rating is warranted for FEV-1 of 56 to 70-percent predicted value, or; FEV-1/FVC of 56 to 70 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 56 to 65 percent predicted. A 60 percent rating is warranted for 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). A 100 percent rating is warranted for 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. 38 C.F.R. § 4.97. Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. 38 C.F.R. § 4.96(a). When there is a disparity between the results of different pulmonary functions tests (PFTs) (FEV-1, FVC, etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 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 based on a decreased FEV-1/FVC ratio should not be assigned. 38 C.F.R. § 4.96(d)(7). Post-bronchodilator studies are required when PFTs 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. 38 C.F.R. § 4.96(d)(4). When evaluating based on PFTs, rates are to 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(d)(5). The Veteran’s claims folder indicates that he underwent pulmonary function tests on multiple occasions. In March 2007, the PFTs showed pre-bronchodilator of FEV-1 of 102 percent predicted, FVC of 110 percent predicted, FEV1/FVC 72 percent predicted, and DLCO of 80 percent predicted. Post-bronchodilator testing was not performed. In March 2010, the Veteran’s PFTs indicated pre-bronchodilator of FEV-1 of 108 percent predicted, FVC of 112 percent predicted, and FEV1/FVC 74 percent predicted. Post-bronchodilator testing was not performed. In March 2016, the Veteran’s PFTs demonstrated pre-bronchodilator of FEV-1 of 91 percent predicted, FVC of 95 percent predicted, FEV1/FVC 72 percent predicted, and DLCO of 88 percent predicted. Testing post-bronchodilator showed FEV-1 of 97 percent predicted, FVC of 97 percent predicted, FEV1/FVC 75 percent predicted. In October 2017, the Veteran’s PFTs showed pre-bronchodilator of FEV-1 of 87 percent predicted, FVC of 92 percent predicted, FEV1/FVC 94 percent predicted. Testing post-bronchodilator found FEV-1 of 96 percent predicted, FVC of 94 percent predicted, FEV1/FVC 94 percent predicted. In sum, the Veteran’s PFTs have not shown test results that warrant a disability rating in excess of 10 percent. At no time did his post-bronchodilator (or pre-bronchodilator) PFTs reflect FEV-1 of 56 to 70-percent predicted value, or; FEV-1/FVC of 56 to 70 percent, or; DLCO SB of 56 to 65 percent predicted. Additionally, there is no evidence of pleurisy with empyema, with or without pleurocutaneous fistula and therefore a 100 percent rating pursuant to Note (1) of Diagnostic Code 6843 is not warranted. There is also no evidence of spontaneous episodes of pneumothorax requiring hospital admission, so a temporary 100 percent rating pursuant to Note (2) of Diagnostic Code 6843 is not warranted. Note (3) of Diagnostic Code 6843 is not for application as the Veteran’s respiratory disorder is not the result of a gunshot wound of the pleural cavity. Therefore, the preponderance of the evidence weighs against entitlement to a disability rating in excess of 10 percent for the Veteran’s service-connected pleurisy, right chest, secondary to pulmonary embolus. Consequently, the benefit-of-the-doubt rule does not apply and a disability rating in excess of 10 percent is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. Service Connection The Veteran seeks entitlement to service connection for a low back disability. Specifically, the Veteran maintains that his low back disability was caused by his service-connected pleurisy, right chest, secondary to pulmonary embolus. For the following reasons, the Board finds that service connection for a low back disability is not established. Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires: (1) competent evidence of current disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either: (a) caused by; or (b) aggravated by a service-connected disability. Id.; see Allen v. Brown, 7 Vet. App. 439 (1995). 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected pleurisy, right chest, secondary to pulmonary embolus, is denied. The Board concludes that, while the Veteran has a current diagnosis of degenerative arthritis of the spine, the preponderance of the evidence is against finding that his spine disorder is proximately due to or the result of, or aggravated beyond its natural progression by, his service-connected pleurisy. 38 U.S.C. §§ 1110; Allen, 7 Vet. App. 439; 38 C.F.R. § 3.310(a). Concerning the Veteran’s current diagnosis, his VA treatment records consistently show complaints of low back pain. A February 2011 CT scan showed significant lower cervical degenerative changes with possible posterior lower disc protrusion at C6-7 narrowing the spinal canal at this level. A February 2012 CT scan demonstrated mild canal stenosis at L2-3, mild bulge at L4-5, and foraminal narrowing most significant at the L5-S1 level. The December 2017 VA examiner opined that the Veteran’s degenerative arthritis of the spine is not proximately due to or aggravated by his service-connected pleurisy. The examiner stated that the Veteran’s degenerative arthritis of the spine is instead caused by the inflammation, breakdown, and eventual loss of cartilage in the joints. Related, the Board notes that a September 2017 rating decision granted the Veteran’s claim for service connection for right thoracic muscle pain as secondary to his service-connected pleurisy. The examiner provided that the Veteran’s right flank pain is related to his pulmonary disability and does not result in a separate back disability diagnosis. The examiner’s opinion is highly probative, because it is based on a review of the Veteran’s medical history and contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, while the Veteran’s right flank pain is related to his service-connected pleurisy, there is no evidence that the Veteran’s service-connected pleurisy proximately caused or aggravated his degenerative arthritis of the spine. The December 2017 VA examiner also provided that a baseline level of severity of the Veteran’s degenerative arthritis of the spine could not be determined because of insufficient medical evidence. Therefore, VA cannot concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(b). The Veteran also stated that he has been told by his treating physician at the Diagnostic Clinic of Houston that his right back pain is related to his service-connected pleurisy. In this matter, the Veteran’s low back disability, degenerative arthritis of the spine, is musculoskeletal in nature and not associated with the Veteran’s pulmonary disability per the December 2017 VA examiner. Again, the Board notes that the Veteran’s right thoracic muscle pain is now service-connected as secondary to his pleurisy. Concerning the Veteran’s degenerative arthritis of the spine, while the Veteran is competent to relay what his treating physician told him, this constitutes indirect evidence concerning what the treating physician purportedly said, and is much more general in nature than the VA medical opinion detailed above. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (finding that the connection between what a physician said and the layman’s account of what he purportedly said, filtered through a layman’s sensibilities, is too attenuated and inherently unreliable to constitute medical evidence); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence”). Thus, the Veteran’s testimony is afforded less probative weight than the December 2017 VA medical opinion. While the Veteran maintains that his low back disability is related to his service-connected pleurisy, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran is a lay person as there is no evidence in his claims folder that shows that he has specialized knowledge, training, or medical expertise. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Consequently, the Board gives more probative weight to the December 2017 VA medical opinion. Additionally, the Veteran’s claims folder does not contain evidence of an in-service incurrence or aggravation of a low back injury or that there is a causal relationship or “medical nexus” between the current low back disability and a disease or low back injury incurred or aggravated during service. See 38 C.F.R. § 3.303(a). (Continued on the next page)   In sum, the preponderance of the evidence weighs against service connection for a low back disability as the competent evidence of record demonstrates the Veteran’s low back disability is not directly linked to his active service or secondary to his service-connected pleurisy, right chest, secondary to pulmonary embolus. Thus, the benefit-of-the-doubt rule does not apply, and service connection for a low back disability is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App.at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel