Citation Nr: 1808700 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 06-30 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 60 percent from August 16, 2005 to December 14, 2014 for a lung disorder. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Original jurisdiction was subsequently transferred to the RO in Columbia, South Carolina. These matters were previously before the Board, and, in September 2010, May 2012, March 2016, and March 2017, the Board remanded these matters for further development. Further development in substantial compliance with the Board's remand instructions has been completed. The issues of entitlement to service connection for chronic obstructive pulmonary disease, coronary artery disease, and hypertension, all to include as secondary to a lung condition have been raised by the record in a January 2012 statement and were referred by the May 2012, March 2016, and March 2017 Board remands; but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. From August 16, 2005 to December 14, 2014: the forced expiratory volume in the first second was 40 percent of predicted or greater; the ratio of forced expiratory volume in the first second to forced vital capacity is 40 percent or greater; diffusion capacity of the lung for carbon monoxide by the single breath method was 40 percent of predicted or greater; the maximum oxygen consumption was 15 ml/kg or greater; cor pulmonale, right ventricular hypertrophy, and acute respiratory failure did not manifest; and oxygen therapy was not required. 2. The Veteran's previously service-connected disability did not prevent the Veteran from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. From August 16, 2005 to December 14, 2014: the criteria for a total disability rating for a lung condition have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.97, Diagnostic Code 6844 (2017). 2. The criteria for TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disability and contentions, and grounded their opinions in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). The Board notes that this matter was previously remanded in order to associate additional treatment records with the claims file and to provide the Veteran with additional VA examinations. Additional VA examinations were provided, and additional treatment records were associated with the claims file in substantial compliance with the Board's remand instructions. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Lung Disorder At issue is whether the Veteran is entitled to a disability rating in excess of 60 percent for a lung disorder. The weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 60 percent. The Veteran first filed for service connection for a lung disorder in November 1969, and, in December 1969, the RO granted service connection and assigned a disability rating of 30 percent. Subsequently, the Veteran's disability rating was increased to 60 percent effective February 1973. On August 16, 2005, the Veteran filed an increased rating claim, and, in December 2005, the RO denied the Veteran's increased rating claim. The Veteran appealed. During the pendency of the appeal, the Veteran was assigned a total disability rating effective December 15, 2014. Therefore, any increased rating claim after December 15, 2014 is moot, because the Veteran has already received the maximum possible disability rating. As such, the period on appeal is from August 16, 2005 to December 15, 2014. The Veteran's disability rating is assigned pursuant to the General Rating Formula for Restrictive Lung Disease. Under the General Rating Formula for Restrictive Lung Disease, a disability rating of 60 percent is assigned when forced expiratory volume in the first second (FEV-1) is 40 to 55 percent of predicted; when the ratio of FEV-1 to forced vital capacity (FEV-1/FVC) is 40 to 55 percent; when diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) is 40 to 55 percent of predicted; or the maximum oxygen consumption is 15 to 20 ml/kg. A total disability rating is assigned when FEV-1 is less than 40 percent predicted; when FEV-1/FVC is less than 40 percent; when DLCO (SB) is less than 40 percent predicted; the maximum oxygen consumption is less than 15 ml/kg in oxygen consumption; or there is cor pulmonale, right ventricular hypertrophy, or acute respiratory failure; or oxygen therapy is required. 38 C.F.R. § 4.97, General Rating Formula for Restrictive Lung Disease. In an August 2005 statement, the Veteran claimed that his lung disorder had gotten worse. The Veteran's treatment records from August 2005 to December 2014 indicate that the Veteran manifested a lung condition throughout the period on appeal. The Veteran submitted a private opinion completed in August 2005. The Veteran's FEV-1 was 66 percent of predicted, and the FEV-1/FVC was 78 percent. The Veteran's DLCO was 60 percent. The Veteran underwent a VA examination in December 2005. The examiner indicated that the Veteran did not manifest cor pulmonale, right ventricular hypertrophy, or pulmonary hypertension. The Veteran also underwent pulmonary functioning tests in December 2005. The Veteran's FEV-1 was 69 percent of predicted, and the FEV-1/FVC was 80 percent. The Veteran underwent another VA examination in November 2010. The examiner indicated that there were crackles in the left base indicating probable mild atelectasis of no clinical significance. The examiner indicated that pulmonary function testing was not required due to the minor nature of the Veteran's complaints. The examiner indicated that there was no evidence of cor pulmonale, pulmonary hypertension, or right ventricular hypertrophy. In January 2012, the Veteran submitted medical literature on lung conditions. The Veteran underwent another VA examination in April 2013. The examiner indicated that the Veteran did not require oxygen therapy for his respiratory condition, and the examiner did not identify any episodes of acute respiratory failure. Pulmonary function testing were ordered but were not performed. Exercise capacity testing was neither ordered nor performed. In May 2013, the Veteran underwent another pulmonary function test. The Veteran's FEV-1 was 67 percent of predicted, and FEV-1/FVC was 76 percent. The weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 60 percent. In order to meet the criteria for a disability rating of 60 percent the Veteran must manifest a FEV-1 of less than 40 percent predicted; a FEV-1/FVC of less than 40 percent; a DLCO (SB) of less than 40 percent predicted; a maximum oxygen consumption of less than 15 ml/kg in oxygen consumption; cor pulmonale, right ventricular hypertrophy, or acute respiratory failure; or oxygen therapy must be required. Nevertheless, the Veteran's FEV-1, FEV-1/FVC, and DLCO were all over 40 percent. The Veteran's maximum oxygen consumption was never less than 15 ml/kg. The Veteran did not need oxygen therapy, and cor pulmonale, right ventricular hypertrophy, and acute respiratory failure were not established during the pertinent period of time. Therefore, the weight of the evidence indicates that the Veteran is not entitled to a total disability rating. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran's lung condition meets the schedular rating criteria for a disability rating in excess of 60 percent during the period on appeal. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to a disability rating in excess of 60 percent for a lung condition is denied. TDIU At issue is whether the Veteran is entitled to TDIU. The weight of the evidence indicates that the Veteran is not entitled to TDIU. TDIU is not an independent claim but is simply another type of increased disability rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the period on appeal begins in August 16, 2005 when the Veteran filed his increased disability rating for his lung condition. Unlike the Veteran's lung condition, the period on appeal for TDIU continues to present, because a total disability rating does not moot a total disability rating. See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran has only been granted service connection for a lung condition, and he has been assigned a disability rating of 60 percent prior to December 14, 2014 and a total disability rating thereafter. The Veteran meets the schedular rating criteria for TDIU, because the Veteran has been assigned a disability rating that is at least 60 percent disabling. Nevertheless, the Veteran is not entitled to TDIU, because the Veteran's service-connected disabilities do not prevent the Veteran from securing and maintaining substantially gainful employment. The Veteran submitted a private opinion in August 2005. The private opinion indicated that the Veteran worked as a carpenter and welder in 1965 and from 1967 to 1969, and he worked as a calendar in 1966. The examiner indicated that the Veteran manifests shortness of breath after walking up a single flight of steps. The Veteran underwent a VA examination in December 2010. The Veteran reported that he had been unemployed for five to 10 years, but that he did manage to make some money selling items on the street. The examiner opined that the Veteran's lung condition does not prevent the Veteran from securing and maintaining substantially gainful employment. The Veteran underwent another VA examination in April 2013. The examiner opined that the Veteran's respiratory condition did not impact his ability to work. In a January 2015 addendum to the April 2013 examination, the examiner indicated that the Veteran worked for a power company in 1965 and from 1967 to 1969 and in construction in 1966. The examiner indicated that the Veteran's lung condition minimally impacted manual labor, but it would not impact the Veteran's ability to perform sedentary employment. The Veteran filed an application for TDIU in July 2013. The Veteran indicated that he had been unemployed for 10 years due to a back problem. The Veteran indicated that he only has some high school education, and that he did not have any other training or education other than his military service before he became too disabled to work. The Veteran also indicated that the Veteran did not have any education or training after he became too disabled to work. In an August 2013 statement, the Veteran indicated that he was no longer able to work due to a back injury and that he had been unemployed for 10 years. The Veteran underwent another VA examination in June 2016. The examiner indicated that the Veteran's lung condition would cause dyspnea upon exertion, and that he required frequent breaks if walking long distances. The Veteran underwent another VA examination in June 2017 which contained substantially similar results. The weight of the evidence indicates that the Veteran is not entitled to TDIU. The Veteran was provided multiple examinations throughout the period on appeal. The medical opinions of record consistently indicate that the Veteran's lung condition but does not limit sedentary employment. Additionally, the medical opinions indicate that the Veteran's lung condition, although clearly limiting, does not outright prevent non-sedentary employment. Finally, the Veteran's own personal statements, including in his application for TDIU, clearly state that the Veteran was unable to work due a back injury rather than his lung disorder. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran's previously service-connected disability prevented the Veteran from securing and maintaining substantially gainful employment. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to TDIU is denied. ORDER A total disability rating from August 16, 2005 to December 14, 2014 for a lung condition is denied. TDIU is denied. ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs