Citation Nr: 18159189 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 15-17 378 DATE: December 19, 2018 ORDER Entitlement to an evaluation of 100 percent from February 12, 2010 to August 22, 2010 is granted. Entitlement to an evaluation of 10 percent, but no higher, for lung cancer post-operative with shortness of breath and weakness (residuals of lung cancer) as of February 11, 2010 (except for the period from February 22, 2010 to August 22, 2010) is granted. Entitlement to an evaluation of 30 percent, but no higher, for residuals of lung cancer as of January 26, 2012, is granted. Entitlement to an evaluation higher than 10 percent for surgical scars is denied. FINDINGS OF FACT 1. As of February 12, 2010, the Veteran had lung cancer manifested with pulmonary function testing (PFT) showing Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO) (SB) of 75. 2. The Veteran underwent right thoracotomy with right upper lobectomy on February 22, 2010. with no subsequent chemotherapy or radiation treatment. 3. As of January 26, 2012, the Veteran’s residuals of lung cancer manifested with PFT showing FEV-1 of 64 percent predicted. 4. The Veteran does not have 3 or 4 scars that are unstable or painful; or that cause any other disabling effect such as limitation of function of the affected body part. CONCLUSIONS OF LAW 1. The criteria for a 100 percent evaluation for residuals of lung cancer are met from February 12, 2010 to August 22, 2010. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.97, Diagnostic Code 6819. 2. The criteria for a 10 percent evaluation, but no higher, for residuals of lung cancer are met as of August 23, 2010. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.97, Diagnostic Code 6819-6604 3. The criteria for a 30 percent evaluation, but no higher, for residuals of lung cancer are met as of January 26, 2012. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.97, Diagnostic Code 6819-6604. 4. The criteria for an evaluation higher than 10 percent for surgical scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to March 1989. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by comparing a Veteran’s symptomatology during the pertinent period on appeal with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. With a claim for an increased initial rating (such as the issues here on appeal), separate “staged” ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lay evidence may be competent to address any matter not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Board has reviewed all the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Higher Evaluations for Residuals of Lung Cancer and Surgical Scars The Veteran contends that he is entitled to a compensable evaluation for the residuals of his prior treatment for lung cancer, as well as an evaluation higher than 10 percent for related surgical scars. The Veteran’s lung cancer residuals have been rated under to 38 C.F.R. § 4.9, Diagnostic Codes 6819-6604. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 6819, malignant neoplasms of the respiratory system are assigned a rating of 100 percent during the active stage, which shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. However, six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. If there has been no local recurrence or metastasis, the condition is rated on residuals. Under Diagnostic Code 6604, a 10 percent rating is warranted with FEV-1 of 71- to 80- percent predicted, or; Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO) (SB) of 66- to 80-percent predicted. 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. 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. The post-bronchodilator findings for PFTs are the standard in pulmonary assessment. See 38 C.F.R. § 4.96(d)(5). However, if the post-bronchodilator results are poorer than the pre-bronchodilator results, then the pre-bronchodilator results are used for rating purposes. Id. Also, when there is a disparity between the results of different PFTs (FEV-1, FVC, etc.) so that the level of evaluation would differ depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability should be used for evaluation. See 38 C.F.R. § 4.96(d)(6). The Veteran has been awarded a separate evaluation of 10 percent for surgical scars as of October 27, 2015 under Diagnostic Code 7805. The Board notes that, effective August 13, 2018, VA revised 38 C.F.R. § 4.118. These revisions apply to all claims filed on or after August 13, 2018. As to claims filed prior to and pending on August 13, 2018, they are to be considered under both the old and new rating criteria and whatever criteria is more favorable to the Veteran will be applied. 83 Fed. Reg. 32592. A review of the newly revised rating criteria for scars shows that, essentially, only Diagnostic Codes 7801 and 7802 were revised (as well as the header of Diagnostic Code 7805). As to the Veteran’s scars on appeal, the Board finds that Diagnostic Codes 7800, 7801, and 7802 are not applicable, as the Veteran’s scars are not disfigurements of the head, face, or neck; are not deep (associated with underlying soft tissue damage) and nonlinear; are not superficial and nonlinear; and do not cover an area of 144 square inches or greater. See 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802 (effective prior to and from August 13, 2018). Thus, only Diagnostic Codes 7805 and 7805 are for potential application in this case. Diagnostic Code 7804 provides a 10 percent rating for 1 or 2 scars that are unstable or painful. A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful and a 30 percent disability rating assigned for 5 or more scars that are unstable or painful. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800-04 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate diagnostic code. Id. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in a Diagnostic Code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Board must consider whether a higher rating is warranted under any other applicable Diagnostic Code or permitted combination of separate ratings under multiple Diagnostic Codes. Assigning separate compensable ratings for the same symptoms/functional impairment under different diagnoses would violate the prohibition against pyramiding in 38 C.F.R. § 4.14. In this case, notes to several of the applicable Diagnostic Codes expressly permit certain particular combinations of skin ratings as not violating the prohibition against pyramiding, with separate skin ratings assigned and combined with application of 38 C.F.R. § 4.25 in certain circumstances. The Board must consider whether a combination of separate ratings under the pertinent skin disability Diagnostic Codes (generally, Diagnostic Codes 7800-7805) would be more favorable to the Veteran than assignment of a single rating under another applicable Diagnostic Code. Turning to the evidence, a January 2010 treatment record following the Veteran’s hospitalization for acute coronary syndrome notes the Veteran had a right upper lobe lung nodule. He reported no chest pain or shortness of breath, but reported a productive cough. On physical examination, breathing was nonlabored and lungs were clear. A February 11, 2010 PFT showed FEV-1 of 95 percent predicted (pre-bronchodilator), FEV-1/FVC of 79 percent predicted (pre-bronchodilator), and DLCO at 75 percent. No post-bronchodilator results were indicated. On February 22, 2010, the Veteran underwent surgery for right upper lobe non-small cell lung carcinoma, but no chemotherapy or radiation treatment. During a November 2010 respiratory conditions VA examination, the Veteran reported shortness of breath with exertion, generalized and upper body fatigue, and discomfort at the surgery site. PFT results showed FEV-1 at 89 percent predicted. Three linear, nonpainful scars were located on the Veteran’s chest. Two scars were described as superficial and one scar was described as deep with underlying tissue damage. The Veteran was diagnosed with lung cancer post-operative with shortness of breath, weakness, and scar. A January 2012 PFT showed FEV-1 at 65 percent predicted (post-bronchodilator); FEV-1/FVC at 80 percent (pre-bronchodilator); and DLCO at 70 percent. A February 2014 letter from the Veteran’s private oncologist indicated the Veteran continued to suffer from shortness of breath due to diminished lung capacity and “pain from the incision and internal operation scars.” In January 2015, the Veteran’s primary physician submitted a letter to VA indicating the results of the Veteran’s January 2012 PFT. The physician indicated that the test results were dated, but were an accurate reflection of the Veteran’s current physical condition, which consisted of continuing pain, diminished physical capability, fatigue, and shortness of breath. The examiner reported that the Veteran had one scar from his February 2010 surgery and it was painful to touch and painful with motion or exertion. The physician indicated the Veteran’s condition was unlikely to improve. During a February 2015 respiratory conditions VA examination, the Veteran was diagnosed with benign or malignant neoplasm or metastases of respiratory system. The examiner reported the Veteran’s scars were not painful and/or unstable. However, the examiner only measured one scar as 20.5 cm in length and width. PFT showed FEV-1 at 59 percent predicted, FVC at 56 percent predicted, and FEV-1/FVC at 105 percent. The VA examiner indicated the Veteran refused to undergo post-bronchodilator testing. The examiner indicated the Veteran’s FVC percentage most accurately reflected his current pulmonary function. An October 2015 scars/disfigurement VA examination noted one painful, non-linear scar on the right mid back below the scapula and two smaller scars that were non-linear and not painful or unstable on the right lower back. None of the scars were deep or superficial. The examiner indicated the scars did not impact the Veteran’s ability to work. An October 2015 respiratory conditions VA examination showed PFT results of FEV-1 of 96 percent predicted (post-bronchodilator); FEV-1/FVC at 81 percent predicted (post-bronchodilator); and, DLCO at 93 percent predicted. Initially, the Board notes that in this case, a March 2011 rating decision granted service connection for lung cancer post-operative with shortness of breath, weakness, and scar associated with herbicide exposure and assigned a noncompensable rating effective February 12, 2010. The Veteran underwent right thoracotomy with right upper lobectomy on February 22, 2010. As such, the Veteran is entitled to a 100 percent disability rating from the date of claim and continuing for the 6 months following his surgery under Diagnostic Code 6819. Upon further review of the evidence of record, the Board finds that a compensable rating of 10 percent for the Veteran’s lung cancer residuals under Diagnostic Code 6819-6604 is warranted as of August 23, 2010, the date following six months after surgery based upon the recent PFT showing DLCO (SB) at 75 percent. The Board also finds that a rating of 30 percent for the Veteran’s lung cancer residuals under Diagnostic Code 6819-6604 is warranted as of January 26, 2012, the date in which a PFT showed FEV-1 at 65 percent predicted (post-bronchodilator). As noted above, the Veteran’s primary current physician reported that these test results were accurate and a reflection of the Veteran’s physical condition, which was unlikely to improve. Thus, the Board will resolve the benefit of the doubt in the Veteran’s favor and grant the increased rating. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55 (1990). The Board finds that a 60 percent rating is not warranted. At no time during the period on appeal has the Veteran’s lung cancer residuals been shown to have 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). Neither is a 100 percent rating warranted aside from the six months following the Veteran’s surgery for lung cancer. The Veteran’s lung cancer residuals have not been shown to have FEV-1 less than 40-percent predicted, 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, or; right ventricular hypertrophy, or; pulmonary hypertension, or; episode(s) of acute respiratory failure, or; the requirement of outpatient oxygen therapy consistent with a 100 percent rating criteria under Diagnostic Code 6819-6604. With regard to the Veteran’s surgical scar, the preponderance of the evidence does not show associated limitation of motion or function. The Board notes that the Veteran’s primary physician indicated in January 2015 that the Veteran only had one painful scar resultant from his February 2010 lobectomy. The Board further finds that an evaluation higher than 10 percent is not warranted as of October 27, 2015, as the Veteran does not have 3 or 4 scars that are painful or unstable scars. Neither are they associated with any functional limitations. See 38 C.F.R. § 4.118, Diagnostic Codes 7804 and 7805. In sum, the Board finds that entitlement to an evaluation of 100 percent disabling, but no higher, for residuals of lung cancer from February 12, 2010 to August 22, 2010 and an evaluation of 10 percent disabling is granted from August 23, 2010 to January 25, 2012. An evaluation of 30 percent disabling, but no higher, for residuals of lung cancer as of January 26, 2012 is also granted. However, the Board   finds that the preponderance of the evidence is against the Veteran’s claim for entitlement to an evaluation higher than 10 percent for surgical scars. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel