Citation Nr: 18158837 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 10-46 995A DATE: December 18, 2018 ORDER The reduction in the Veteran’s disability rating for lung cancer from 100 percent to 30 percent effective September 1, 2014 was proper. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. A March 2014 rating decision proposed to reduce the Veteran’s rating for lung cancer from 100 percent to noncompensable. 2. The proposed reduction was implemented in a June 2014 rating decision, and made effective September 1, 2014 in compliance with applicable due process laws and regulations. 3. An October 2017 rating decision assigned a 30 percent rating for residuals of lung cancer effective September 1, 2014. 4. Since September 1, 2014, the Veteran’s residuals of lung cancer are productive of FEV-1 of no less than 82 percent; FEV-1/FVC of no less than 63 percent, and DLCO (SB) of no less than 57 percent predicted. 5. It is reasonably shown that the Veteran’s service-connected disabilities preclude him from maintaining more than marginal employment. CONCLUSIONS OF LAW 1. The reduction the Veteran’s lung cancer residuals from 100 percent to 30 percent effective September 1, 2014 is proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.97, Diagnostic Code (DC) 6844. 2. The criteria for entitlement to TDIU due to the Veteran’s service-connected disabilities are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1966 to October 1968, to include service in Vietnam from November 1967 to October 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2009 and June 2014 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in January 2016. This case was previously before the Board in June 2016 and March 2017 and remanded for additional development. 1. The reduction in the Veteran’s disability rating for lung cancer from 100 percent to 30 percent In March 2014, the RO proposed to reduce the Veteran’s evaluation for lung cancer residuals from 100 percent to noncompensable. The reduction was accomplished in June 2014 rating decision and made effective September 1, 2014. The Veteran contended that the reduction of his disability benefits was not proper. See October 2014 notice of disagreement. At the January 2016 Board hearing, the Veteran testified that the residuals of his lung cancer include losing his breath, pain from scar tissue, and limited ability for prolonged walking without stopping. See January 2016 Board hearing transcript, pp. 13-14. He also contended that his cancer was not in remission at that time. Id., pp. 15, 18; Scott v. McDonald,789 F.3d 1375 (Fed. Cir. 2015). Subsequently, an October 2017 rating decision assigned a 30 percent rating for residuals of lung cancer effective September 1, 2014 and granted service connection for a painful surgical scar of the right upper posterior chest with an evaluation of 10 percent effective October 11, 2011 and a surgical scar of the mid right anterolateral posterior with a noncompensable evaluation effective February 18, 2014. The Veteran was granted a 100 percent evaluation for lung cancer under 38 C.F.R. § 4.97, DC 7519. DC 7519, which pertains to malignant neoplasms of the respiratory system, provides: A rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic 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 based upon that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals. The Board notes that the claim at issue is not a formal reduction under the substantive provisions of 38 C.F.R. § 3.343 and 38 C.F.R. § 3.344 because the provisions of 38 C.F.R. § 4.97, DC 6819 contain a temporal element for continuance of a 100 percent rating for lung cancer. The United States Court of Appeals for Veterans Claims (CAVC) has held that, where, as with lung cancer, a diagnostic code requires assignment of a 100 percent evaluation for a finite period of time, followed by the requirement that the disorder thereafter be rated based on residuals, the assignment of a lower disability rating based on those residuals does not constitute a reduction. See Rossiello v. Principi, 3 Vet. App. 430 (1992). Accordingly, the Board must only determine if the procedural requirements of 38 C.F.R. § 3.105(e) were met and if the reduction was by operation of law under DC 6819. The Board finds that the RO procedurally complied with the procedural requirements regarding the manner in which the Veteran was given notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. The reduction of lung cancer from a 100 percent rating is proper as the evidence does not show local reoccurrence or metastasis of the Veteran’s lung cancer since his treatment in 2011. The evidence shows that the Veteran’s cancer has been in the remission since 2011. See February 2014, July 2016, and September 2017 VA examinations; March 2017 VA addendum opinion; and April 2014 and February 2015 letters from private treatment at the University of Virginia. As the cancer is no longer active, the Veteran is no longer eligible to be rated under DC 6819. Instead, the Veteran’s lung cancer has been rated based on his residual symptoms under DC 6844 and evaluated as 30 percent disabling. See October 2017 rating decision. Under DC 6844, a 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (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. 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 30 percent rating is warranted 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. At the July 2016 VA examination, pre-bronchodilator pulmonary function testing showed FVC of 101 percent predicted, FEV-1 of 87 percent predicted, FEV-1/FVC of 85 percent, and DLCO of 64 percent predicted. Post-bronchodilator testing showed FVC of 103 percent predicted, FEV-1 of 90 percent predicted, and FEV-1/FVC of 86 percent. The examiner noted that FEV-1 most accurately reflects the Veteran’s level of disability. September 2016 VA pulmonary function testing showed pre-bronchodilator FVC of 102 percent, FEV-1 of 82 percent, and FEV-1/FVC of 64 percent; and post-bronchodilator FVC of 105 percent, FEV-1 of 88 percent, and FEV-1/FVC of 67 percent. An March 2017 VA addendum opinion was provided and noted that FEV-1 most accurately reflects the Veteran’s level of disability. At the September 2017 VA examination, pre-bronchodilator pulmonary function testing showed FVC of 114 percent predicted, FEV-1 of 94 percent predicted, FEV-1/FVC of 63 percent, and DLCO of 57 percent predicted. Post-bronchodilator testing showed FVC of 111 percent predicted, FEV-1 of 92 percent predicted, and FEV-1/FVC of 64 percent. The examiner noted that DLCO most accurately reflects the Veteran’s level of disability. At the evidence shows that the Veteran’s cancer is in remission, the Board finds that the discontinuance of a 100 percent rating for lung cancer effective September 1, 2014 was proper. Further, based on the pulmonary function testing results noted above, a rating in excess of 30 percent for residuals of lung cancer is not warranted. The Board also acknowledges that the Veteran’s contentions that the residuals of his lung cancer includes painful scars. The Veteran is in receipt of a 10 percent rating for a painful surgical scar associated with his lung cancer and noncompensable ratings for additional scars associated with his lung cancer. Under 38 C.F.R. § 4.118, which is the rating schedule that pertains to the skin, DC 7805 pertains to scars and provides that scars be evaluated under DCs 7800, 7801, 7802, and 7804. This provision also instructs VA to evaluate any disabling effects not considered in a rating provided under DCs 7800, 7801, 7802, and 7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118. DCs 7800, 7801, and 7802 do not apply as the Veteran’s scars are not a burn scars; are not located on the head, face, or neck; and are each less than six square inches (39 square centimeters). DC 7804 pertains to scars that are unstable or painful and provides a 10 percent rating where there are one or two scars that are unstable or painful; a 20 percent rating where there are three or four scars that are unstable or painful; and a 30 percent rating where there are five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7804. If one or more scars are both unstable and painful, 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. Id. The VA examinations show that the Veteran has two scars on the right thorax which are residuals of his lung cancer. The examiner notes the scars are not painful or unstable, have a total area less than 39 square centimeters (six square inches) and are not located on the head, face, or neck. See February 2014, June 2016, and September 2017 VA examinations. Accordingly, a rating in excess of 10 percent is not warranted for the Veteran’s scars as residuals of his lung cancer. 2. Entitlement to TDIU The Veteran contends that he is unable to work due to his service-connected PTSD. See January 2017 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. On his application, he reported that he was last employed full time in May 2007 as an assistant press tech, he worked part-time from November 2014 to December 2016 for four hours per week in retail at Kohl’s, and he has a high school education. Id.; Scott v. McDonald,789 F.3d 1375 (Fed. Cir. 2015). In addition to the work history noted by the Veteran on his application, a January 2010 VA treatment record show that the Veteran also worked full time as a night stock person at Food Lion at that time. Additionally, at a February 2017 VA PTSD examination, the Veteran reported, in regard to his part-time employment at Kohl’s, that for three years, he worked three to four days per week, then cut it down to one day per week in June 2016, then stopped working altogether two in December 2016. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Veteran’s service-connected disabilities consist of the following: PTSD rated 30 percent disabling since February 26, 2008, 50 percent disabling from July 5, 2016, 70 percent disabling from January 27, 2017; lung cancer and residuals of lung cancer rated 100 percent disabling from July 28, 2011 and 30 percent disabling from September 1, 2014; a painful surgical scar of the right upper posterior chest associated with lung cancer in remission status post right upper lobectomy rated 10 percent disabling from October 11, 2011; and noncompensable ratings for scar status post right upper lobectomy, vein thrombosis of the left anxillary and left internal jugular, and surgical scar of the mid right anterolateral posterior, all associated with lung cancer in remission status post right upper lobectomy. Thus, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a) effective July 5, 2016. The Board finds that the Veteran’s part-time employment from July 5, 2016 through December 2016 is considered marginal employment. The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. For purposes of determining whether a claimant is entitled to a TDIU, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist, on a facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration shall be giving in all claims to the nature of the employment and the reason for termination. Id. A January 2017 statement from the Veteran’s previous employer, Kohl’s, shows the Veteran was employed from November 14, 2014 to December 15, 2016 as an associate in the home and kids departments. It shows the Veteran’s earnings for the twelve months preceding his last date of employment were $1483, which does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. The Veteran contends that he stopped working in retail at Kohl’s because he realized he could not deal with it anymore due to his anger issues. See February 2018 PTSD Disability Benefits Questionnaire (DBQ) and February 2017 VA PTSD examination. At the February 2017 VA examination, he detailed an incident during which was not fast enough at the cash register, and people were looking at him and making comments, which triggered his PTSD and caused him to panic and his mind to go blank. The examiner found the Veteran’s understanding and memory were mildly impaired; social interaction was moderately impaired; and sustained concentration and persistence and adaptation were severely impaired. The September 2017 VA respiratory examination notes that the Veteran’s respiratory condition impacts his ability to work as it slows him down and he has to take breaks when doing manual labor. As the Veteran meets the requirements under 38 C.F.R. § 4.16(a) and the evidence supports that the combined effects of his service-connected disabilities prevent him from securing or maintaining more than marginal employment, the Board finds that entitlement to a TDIU is warranted. BETHANY L. BUCK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Samuelson, Counsel