Citation Nr: 18158016 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-45 065 DATE: December 14, 2018 ORDER For the entire initial rating period from January 27, 2014, a higher initial rating of 60 percent, but no higher, for radiation-induced pulmonary fibrosis is granted. FINDING OF FACT For the entire initial rating period from January 27, 2014, the service-connected pulmonary fibrosis has been manifested by symptoms that more nearly approximate DLCO (SB) of 40- to 55-percent predicted. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, for the entire initial rating period on appeal from January 27, 2014, the criteria for a higher initial 60 percent rating, but no higher, for the radiation-induced pulmonary fibrosis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.97, Diagnostic Code 6845. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, served on active duty from December 1967 to June 1971. A higher initial rating for radiation induced pulmonary fibrosis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran is in receipt of a noncompensable (0 percent) initial rating for the service-connected radiation induced pulmonary fibrosis for the entire initial rating period from January 27, 2014 under Diagnostic Code 6845. 38 C.F.R. § 4.97. The Veteran seeks a higher initial 60 percent rating based on pulmonary test results. See October 2015 Notice of Disagreement. Under Diagnostic Code 6845, a 10 percent rating is assigned for Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted, or; FEV-1/ Forced Vital Capacity (FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method ((DLCO) (SB)) 66- to 80-percent predicted. A 30 percent rating is assigned for 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 assigned 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 assigned for FEV-1 less than 40 percent of predicted value, or; the ratio of 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. Notes following the rating criteria for Diagnostic Code 6845 provide that a 100 percent rating will be assigned for pleurisy with empyema, with or without pleurocutaneous fistula, until resolved. Following episodes of total spontaneous pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall continue for three months from the first day of the month after hospital discharge. When rating based on pulmonary function tests (PFTs), post-bronchodilator results are used in applying the criteria in the rating schedule unless the post-bronchodilator studies are poorer that the pre-bronchodilator results. See 38 C.F.R. § 4.96(d)(5). In this case, the Board has reported the post-bronchodilator findings as they are not poorer than the pre-bronchodilator values. After a review of all the evidence of record, the Board finds that, for the entire initial rating period on appeal from January 27, 2014, the service-connected radiation induced pulmonary fibrosis has been manifested by symptoms that more nearly approximate DLCO (SB) of 40- to 55-percent predicted to warrant a higher initial 60 percent rating under Diagnostic Code 6845. A May 2014 private treatment record and June 2014 private examination report show DLCO (SB) measured at 44 percent predicted (criteria for a 60 percent rating). Additionally, a May 2016 private treatment record reflects DLCO (SB) was measured at 45 percent predicted (criteria for a 60 percent rating); a February 2017 private examination report shows DLCO (SB) was measured at 48 percent predicted (criteria for a 60 percent rating); and an October 2017 private treatment record shows DLCO (SB) was measured at 52 percent predicted (criteria for a 60 percent rating). The record also includes a June 2014 VA examination report and a March 2015 VA examination report that shows FEV-1 and FEV-1/FVC measured between 95 percent 110 percent (criteria for a noncompensable rating). Although these results appear to indicate milder respiratory symptoms, the record also includes a February 2017 private medical letter from a treating pulmonary specialist, Dr. H.K., detailing the Veteran’s medical history and explaining that the respiratory condition has consistently demonstrated relatively preserved spirometry results with isolated decreases in DLCO (SB) test results. Dr. H.K. explained that the Veteran has significant respiratory limitation that is most accurately captured by DLCO (SB) testing as indicated on the February 2017 private examination report. Ad Dr. H.K. is the Veteran’s regular treating pulmonary specialist, the doctor is familiar with the Veteran’s medical history. On this basis, the Board finds that DLCO (SB) testing results are the most accurate indicator of the severity of the Veteran’s pulmonary fibrosis. As the medical evidence of record demonstrates DLCO (SB) results between 44 percent and 52 percent predicted throughout the entire initial rating period on appeal from January 27, 2014, the Board resolves reasonable doubt in favor of the Veteran and finds that the criteria for a higher initial 60 percent rating under Diagnostic Code 6845 have been met. 38 C.F.R. §§ 4.3, 4.7, 4.97. Accordingly, the appeal for a higher initial rating for radiation induced pulmonary fibrosis is fully granted in the Board’s instant decision. In the October 2015 Notice of Disagreement, the Veteran conveyed that a 60 percent disability rating would satisfy the appeal as to this issue. Such a full grant of benefits sought, coupled with express indication that the rating percentage sought fully satisfies the appeal, is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service connected disability). The Board finds the Veteran’s waiver of the remaining aspects of the appeal for a higher initial rating for radiation induced pulmonary fibrosis in excess of the 60 percent granted was knowing and intelligent, and is supported by the evidence of record. (Continued on the next page)   Because a higher 60 percent initial rating for pulmonary fibrosis is granted for the entire initial rating period on appeal from January 27, 2014, which the Veteran represented would fully satisfy the initial rating issue on appeal, the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher initial rating than 60 percent for the entire initial rating period, including any questions of extraschedular referral or rating. See 38 C.F.R. § 20.204 (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any question of higher disability rating for pulmonary fibrosis is rendered moot with no remaining questions of law or fact to decide. See 38 U.S.C. § 7104; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). In summary, the Board finds that the service connected radiation induced pulmonary fibrosis more closely approximates the criteria for a 60 percent rating under Diagnostic Code 6845 for the entire initial rating period on appeal from January 27, 2014; therefore, the appeal is fully granted, leaving no remaining rating questions, including questions of referral for extraschedular rating under 38 C.F.R. § 3.321(b). 38 U.S.C. § 7104. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel