Citation Nr: 18156655 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 17-27 861 DATE: December 10, 2018 ORDER Entitlement to a permanent and total evaluation under 38 C.F.R. § 3.340 for residuals of lung cancer status post lobectomy with severe restrictive lung disease is denied. FINDING OF FACT 1. The Veteran’s residuals of lung cancer status post lobectomy with severe restrictive lung disease does not result in permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of the eyes, nor is he permanently helpless or bedridden as a result of that disability. 2. The Veteran’s respiratory disability is not shown to render him unable to follow a substantially gainful occupation, nor does the evidence of record demonstrate that the residuals of the active disease and therapeutic treatment for his lung cancer been shown to result in irreducible totality of disability. CONCLUSION OF LAW The criteria for a permanent and total evaluation under 38 C.F.R. § 3.340 for residuals of lung cancer status post lobectomy with severe restrictive lung disease are not met. 38 U.S.C. §§ 1502, 5107; 38 C.F.R. §§ 3.102, 3.340(a), (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1963 to July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for residuals of lung cancer, and assigned a 100 percent evaluation under Diagnostic Code 6819, effective July 14, 2015, but found that such total rating was not permanent and was subject to a future examination. The Veteran timely appealed the denial of a permanent and total evaluation for his lung cancer residuals. During the pendency of this appeal, the Agency of Original Jurisdiction (AOJ) proposed to the Veteran’s lung cancer residuals disability from 100 percent to 30 percent disabling in a May 2017 rating decision. Although such is not associated with the file, it appears that the Veteran was properly informed of that proposal to reduce his benefits, as he submitted Notice of Disagreement, VA Form 21-0958, disputing that there was improvement in his lung cancer disability. In response to that Notice of Disagreement, the AOJ sent the Veteran a May 2017 letter indicating that it could not accept the Notice of Disagreement, as the filing of such was premature given that they had only proposed to reduce his benefits. In an August 2017 rating decision, the AOJ finalized the reduction of the Veteran’s lung cancer residuals disability from 100 percent to 30 percent disabling and terminated his entitlement to special monthly compensation (SMC) for housebound benefits, effective November 1, 2017. The Veteran was informed of that decision in an August 2017 letter. As of this date, the Veteran has not submitted a Notice of Disagreement, VA Form 21-0958, with the finalized reduction in his assigned disability rating for his lung cancer residuals disability and therefore the Board does not have jurisdiction over the claim of the propriety of the reduction in this case. Rather, the sole issue before the Board is whether the Veteran is entitlement to a permanent and total evaluation under 38 C.F.R. § 3.340 for his lung cancer residuals disability; the Board must find that he is not for the following reasons. Generally, total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Under 38 C.F.R. § 3.340(b), permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of the eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. Id. Other factors to consider include failure to pursue treatment and whether the disability has been shown to be of longstanding duration, actually totally incapacitating, or of such a nature as to render the probability of permanent improvement remote. See KL v. Brown, 5 Vet. App. 205, 208 (1993). Diagnostic Code 6819, which provides the criteria for rating malignant neoplasms of the respiratory system, includes criteria for a 100 percent evaluation. The Note that follows Diagnostic Code 6819 explains that a 100 percent evaluation shall continue beyond the cessation of any surgical, x-ray, anti-neoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation shall be subject to the provision of 38 C.F.R. § 3.105(e). If there has been no local recurrence or metastasis, rate on residuals. See 38 C.F.R. § 4.97, Diagnostic Code 6819. Based on the plain language of the Rating Schedule in this case, it is clear that the Veteran’s 100 percent evaluation is not contemplated to be a permanent and total disability unless there is continued therapeutic treatment, presence of active disease, and/or metastasis of the cancer. In fact, after cessation of the therapy for the active disease, the Rating Schedule indicates that a reduction of benefits based on improvement of the condition would be warranted. Accordingly, the Board cannot find that the Veteran’s disability in this case is contemplated as being a “static” disability. On appeal, the Veteran and his representative have asserted that a permanent and total evaluation is warranted in this case because his private physician, Dr. J.F.D., has indicated that his disability is permanent and total in nature. To substantiate that assertion, the Veteran has submitted three letters from Dr. J.F.D. In an August 2015 letter, Dr. J.F.D. indicated that the Veteran was recently diagnosed with non-small cell lung cancer and that he was recovering from surgery; he was noted to have issues with exercise tolerance and shortness of breath. She further noted that the Veteran’s current prognosis and life expectancy were uncertain at that time. In a February 2016 letter, Dr. J.F.D. stated that the Veteran was diagnosed with a carcinoid tumor of the lung in August 2015; he was subsequently referred for a left lobectomy to excise the carcinoid tumor. She noted that the Veteran continued to have issues with exercise tolerance and shortness of breath. She noted that based on follow-up oncology consultation, no adjuvant chemotherapy or radiation was necessary, but due to the removal of part of his lung, she “expect[ed] his disability to be permanent and total.” She did not “think he [would] recover his baseline capacity given the nature of his cancer and treatment.” In a May 2017 letter, Dr. J.F.D. reiterated the findings she noted in the February 2016 letter, including that she “expected his disability to be permanent and total.” She continued as follows: He is now almost 2 years out from his treatment, and he continues to have trouble with shortness of breath following his lobectomy. He has poor exercise tolerance and is severely limited in his daily activities due to breathing issues. Any significant walking worsens his breathing and pain. He has had pain around the surgical area in the chest from expected nerve damage that occurred at the time of surgery. He also has some numbness and itching along the chest wall that [is] also a result of [nerve] damage. I do not expect these symptoms will ever resolve, and his disability remains total and permanent. Finally, in April 2017, the Veteran underwent the mandatory VA examination of his lung cancer disability. At that time, the Veteran was noted to have severe restrictive lung disease as a residual of his lung cancer post left upper lobectomy. The examiner noted that the Veteran was diagnosed with lung cancer and had a left lobectomy in August 2015. The Veteran reported worsened difficulty breathing since his lobectomy, and indicated that he currently experienced difficulty breathing, dizziness, pin-needle pain in the left lung area, and numbness from the left ear to the neck and then to the shoulder area. He took Breo/Ellipta daily; the examiner also noted that he had a pulmonary functions test (PFT) performed in March 2017. On examination, the examiner noted that the Veteran did not have oral or parenteral corticosteroid medication use. The Veteran, however, was noted to daily use inhalational anti-inflammatory medications, although he did not require the use of oral bronchodilators, antibiotics, or oxygen therapy. The examiner noted that the Veteran did not have asthma, bronchiectasis, sarcoidosis, pulmonary embolism, bacterial lung infection, mycotic lung infection, pneumothorax, gunshot/fragment wound, cardiopulmonary complications, or respiratory failure; he was noted to have tumors and neoplasms, with severe lung restriction. The examiner noted that the Veteran did not have any current neoplasm or metastases of lung cancer at that time; instead, the Veteran was noted to have very severe restrictive lung disease that was a residual of his lung cancer post lobectomy, with a 3.8 by 0.1 cm residual scar of the left lateral chest. The examiner noted that the results of the Veteran’s March 2017 PFT revealed pre-bronchodilator testing of FVC 17 percent of predicted, FEV-1 23 percent of predicted, for an FEV-1/FVC of 98 percent; post-bronchodilator testing was 37 percent of predicted, 35 percent of predicted, and 69 percent, respectively. No DLCO results were obtained, as such was not indicated for his respiratory condition. The examiner indicated that the Veteran’s FEV-1/FVC results were the most accurate reflection of his respiratory disability. Finally, the examiner indicated that the Veteran’s difficulty breathing affected his daily activities and stated that he was unable to perform high intensity tasks such as digging in his yard, running, and prolonged walking. Based on the foregoing evidence, the Board finds that a permanent and total evaluation under 38 C.F.R. § 3.340 is not warranted. That evidence does not demonstrate that the Veteran’s respiratory disorder results in permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of the eyes. Likewise, the evidence does establish that the Veteran is permanently bedridden as a result of his respiratory disability, and although the Veteran is shown to have difficulty performing his daily activities, he is not shown to be permanently helpless. Furthermore, the Board acknowledges that the evidence of record demonstrates that the Veteran has difficulty with performance of daily activities and high-impact activities such as running and prolonged walking. The Board also acknowledges Dr. J.F.D.’s statements that she believes his disability is permanent and total. The Board, however, notes that Dr. J.F.D.’s statements regarding permanence are not based on any of the factors noted in 38 C.F.R. § 3.340(b), but are rather based on the fact that the Veteran had a portion of his lung permanently resected; in this sense, the Board agrees that the disability the Veteran has is “permanent,” although such does not demonstrate that such is a permanent total disability under VA regulation. The evidence of record does not demonstrate that the Veteran’s respiratory disability is sufficient to render it impossible for the average person to follow a substantially gainful occupation. The Veteran, while unable to perform high impact or “high intensity tasks,” he is otherwise able to do more low-impact/low-intensity tasks such as answering telephones, typing, and other generally administrative tasks that do not require prolonged walking. The Board acknowledges that the Veteran’s respiratory disability does result in difficulty performing daily activities, but he is not precluded from such activities, and otherwise the function of the evaluation he is given for his respiratory disability is to compensate the Veteran for this difficulty and reduction in earning capacity. Finally, the total disability rating in this case was assigned because the Veteran had active malignant disease; the function of the rating is designed to take into account the fact that the average person would be unable to work when receiving therapeutic treatment for their cancer or malignant tumors/neoplasms. However, after cessation of such treatment and the lack of any active disease, the Rating Schedule clearly contemplates that this impairment in earning capacity due to such treatment and active disease would cease to exist and is therefore not permanent in nature. In other words, the Rating Schedule explicitly acknowledges that the Veteran’s active disease is subject to improvement and that after the cessation of the active disease and treatment for such, VA will compensate the Veteran for the residuals of that process. That has happened in this case and the propriety of the Veteran’s 30 percent evaluation for the residuals of his lung cancer is not before the Board at this time. In other words, as the evidence does not demonstrate combinations or permanent loss of use of extremities or sight, or permanent helplessness or being bedridden in this case, nor does is shown that the residuals of the Veteran’s disability have resulted in irreducible totality of disability, the Board cannot find that a permanent total disability rating may not be granted in this case. See 38 C.F.R. §§ 3.102, 3.340. As a final matter, the Board acknowledges that the Veteran and his representative have also asked for restoration of his SMC for housebound benefits on the basis of the presence of a permanent and total evaluation plus a combined total of other disabilities of 60 percent or greater. The Board, however, notes that the restoration of those benefits is necessarily based on the award of a permanent and total evaluation for the Veteran’s respiratory disability in this case. As such is denied for the above reasons, the award of SMC for housebound benefits sought in conjunction with that award must also be denied at this time. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.351(d). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel