Citation Nr: 20023908 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 20-12 182 DATE: April 7, 2020 ORDER Entitlement to a rating in excess of 10 percent, prior to May 16, 2019, for emphysema with residuals of bilateral collapsed lung surgery (spontaneous bilateral pneumothorax) is denied. Entitlement to a rating in excess of 30 percent, after May 16, 2019, for emphysema with residuals of bilateral collapsed lung surgery (spontaneous bilateral pneumothorax) is denied. FINDINGS OF FACT 1. VA received a claim for an increased rating for emphysema on June 26, 2018; a factually ascertainable increase in the severity of the Veteran’s emphysema disability to 30 percent is not shown within the year prior. 2. Prior to May 16, 2019, post-bronchodilator results were noted as: FVC 78 percent of predicted; FEV-1 74 percent predicted; and FEV-1/FVC results were 95 percent predicted; the respiratory condition has not required the use of oral or parenteral corticosteroid medication, oral bronchodilators, or antibiotics or require outpatient oxygen therapy. 3. From May 16, 2019, the Veteran’s DLCO (which most accurately reflected the Veteran’s level of disability) was greater than 55 percent. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent, prior to May 16, 2019, for emphysema with residuals of bilateral collapsed lung surgery (spontaneous bilateral pneumothorax) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.97, Diagnostic Code 6603. 2. The criteria for a rating in excess of 30 percent, from May 16, 2019, for emphysema with residuals of bilateral collapsed lung surgery (spontaneous bilateral pneumothorax) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.97, Diagnostic Code 6603. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1952 to March 1956. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). An appeal for entitlement to a total disability rating based on individual unemployability was raised at May 2016 Board hearing and remanded in August 2017. This matter will be the subject of a separate Board decision at a later time. 1. Entitlement to a rating in excess of 10 percent, prior to May 16, 2019, for emphysema with residuals of bilateral collapsed lung surgery (spontaneous bilateral pneumothorax) is denied. 2. Entitlement to a rating in excess of 30 percent, after May 16, 2019, for emphysema with residuals of bilateral collapsed lung surgery (spontaneous bilateral pneumothorax) is denied. The Veteran filed a claim seeking service connection for ‘asbestos, lung disease’ in June 2018. At the time this claim was filed, the Veteran was service-connected for residuals of bilateral collapsed lung surgery (spontaneous bilateral pneumothorax) with chest pain. A 10 percent evaluation had been in effect since July 12, 1957 pursuant to 38 C.F.R. § 4.97, DC 6814-6602. In the November 2018 rating decision on appeal, the RO essentially found service connection for emphysema (claimed as asbestosis lung disease) was warranted but added this disability to the Veteran’s already service-connected respiratory disability and continued the 10 percent rating that had been in effect. The RO recharacterized the respiratory disability as emphysema with residuals of bilateral collapsed lung surgery (spontaneous bilateral pneumothorax) with chest pain also claimed as asbestos lung disease) and changed the diagnostic code to 38 C.F.R. § 4.97, DC 6603. The RO correctly explained that when evaluating coexisting respiratory conditions, VA regulations provide that ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. 38 U.S.C. § § 1155; 38 C.F.R. § § 4.96 (a). Instead, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. In a January 2020 rating decision, the RO increased the disability rating to 30 percent, effective May 16, 2019. As this constituted less than the maximum benefit allowed by law and regulation, the claim for a higher rating for coronary artery disease remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The appeal period before the Board begins one year prior to the date VA received June 2018 the claim for emphysema, which was treated as a claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). To the extent that the notice of disagreement received in December 2019 expressed disagreement with service connection and the effective date, the Board will take no further action. Service connection was effectively granted for emphysema, although this disability may not be rated separately. Thus, there is no controversy in this respect. As the RO did not assign a higher disability rating, but merely continued the 10 percent rating in effect, no effective date was assigned. There is no appealable issue in that sense. To the extent that the Veteran’s attorney further argues that a higher rating is warranted from 1957 (and based on diagnostic codes currently no longer in effect), this is without legal merit. Prior rating decisions in August 1956, February 1958, September 1959, August 1996, August 1999, February 2003, August 2005, April 2010, May 2015, adjudicated the proper rating for the Veteran’s respiratory disability. The Veteran did not appeal any of these rating decisions and they became final after a period of one year. 38 U.S.C. § 7105 (d); 38 C.F.R. §§ 3.104, 20.202, 20.1103. In the absence of clear and unmistakable error, which has not been argued, the Board has no jurisdiction to revisit those prior, final rating decisions that denied higher ratings for the Veteran’s respiratory disability. See 38 U.S.C. §§ 5109A, 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006). Analysis Disability evaluations are determined by application of the criteria set forth in the 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. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). As noted, the Veteran’s residuals of bilateral collapsed lung surgery (spontaneous bilateral pneumothorax) was previously rated pursuant to 38 C.F.R. § DC 6814-6602. The Veteran’s emphysema is currently rated pursuant to 38 C.F.R. § 4.97, DC 6603, for emphysema. Under DC 6602, a 10 percent rating is warranted where FEV-1 is 71- to 80-percent predicted, or; FEV-1/FVC is 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for FEV-1 of 56- to 70 percent predicted, or; FEV-1/FVC of 56- to 70-percent predicted, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40- to 55-percent predicted, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted for FEV-1 less than 40 percent predicted, or; FEV-1/FVC less that 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Under the general rating formula for emphysema Diagnostic Code 6603 provides: a 10 percent rating is assigned for Forced Expiratory Volume in one second (FEV-1) of 71-percent 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 predicated, or; FEV-1/FVC of 56 to 70 percent, or; DLCO of 56 to 65 percent predicted. A 60 percent rating is assigned for FEV-1 of 40 to 55 percent predicted, or; FEV-/FVC of 40 to 55 percent predicted, or; DLCO of 40 to 55 percent predicted, or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 100 percent rating is assigned for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiorespiratory 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. 38 C.F.R. § 4.97, Diagnostic Code 6603. VA treatment records reveal a long history of treatment for shortness of breath and exertional dyspnea. Prior to the period at issue, the Veteran has repeatedly sought emergency room treatment for chest pain, shortness of breath, and dyspnea. In June 2018, the Veteran sought a prescription for a mobility scooter. He reported he had difficulty going up a hill near his sons, and that he became out of breath and needed further aid in ambulation. A July 2018 CT of the chest revealed moderate reticulation of the subpleural regions in both lungs, mild upper lobe predominant emphysema, and stable apical pleuroparenchymal scarring of the right upper lobe. The treating provider noted no significant change since 2012, although the provider also indicated the reticulation of the right lower lobe was a bit more pronounced. The Veteran underwent a VA examination in November 2018; this examination was for the purposes of determining whether emphysema was related to service. The examiner noted that the emphysema is a later manifestation of his in-service lung condition. The examiner indicated the Veteran’s respiratory condition does not require the use of oral or parenteral corticosteroid medication, oral bronchodilators, or antibiotics or require outpatient oxygen therapy. The examiner noted that pulmonary function tests (PFTs) had not been performed during the examination because the 2018 computed tomography (CT) scan of the chest showed no change compared with 2012 CT scan, and he believed the 2012 PFTs remained a valid measurement of the Veteran's pulmonary status as reported by the 2012 PFT results. Post-bronchodilator results were noted as: FVC 78 percent of predicted and FEV-1 74 percent predicted. FEV-1/FVC results were 95 percent predicted. The examiner indicated that the FEV-1 percent predicted results on the 2012 examination report most accurately reflected the Veteran’s level of disability. The examiner explained that the FEV-1 was the best choice, given the Veteran’s obstructive disease. The Veteran underwent a VA examination in May 2019. The Veteran reported exertional dyspnea and shortness of breath. The examiner noted a medical history of pneumothorax in 1957. The examiner noted diagnoses of emphysema and residuals of bilateral collapsed lung surgery. The examiner indicated the Veteran’s respiratory condition does not require the use of oral or parenteral corticosteroid medication, oral bronchodilators, or antibiotics or outpatient oxygen therapy. PFT results conducted at the examination were as follows: FVC 88 percent predicted, FEV-1 92 percent predicted, and FEV-1/FVC results were at 103 percent predicted. DLCO was 63 percent of predicted; only pre-bronchodilator results were provided. The examiner indicated that the DLCO test result most accurately reflects the Veteran's level of disability. After consideration of the evidentiary record, the Board finds that a 30 percent rating for service-connected emphysema from June 26, 2018 to May 16, 2019, is not warranted. The examiner relied upon 2012 PFT findings at the 2018 VA examination but explained that additional testing was not needed because there was no change from the 2012 PFT findings. The examiner concluded that VA treatment records, including a CT scan of the chest, did not support a change in respiratory symptoms that would warrant conducting a second PFT. Utilizing those earlier PFT results, the evidence does not support a higher percent rating. The examiner indicated that the FEV-1 percent predicted results on the 2012 examination report most accurately reflected the Veteran’s level of disability; this was 74 percent of predicted and falls within the 10 percent rating criteria. Even considering this disability under DC 6602 (the former criteria used to rate the Veteran’s disability) a higher rating is not warranted as the examiner indicated the Veteran’s respiratory condition did not require the use of oral or parenteral corticosteroid medication, oral bronchodilators, or antibiotics or require outpatient oxygen therapy. In the absence of clinical evidence between June 2018 and May 2019 to suggest otherwise, the Board finds no basis to reach a different conclusion. The Veteran is rated at 30 percent from May 16, 2019. A higher 60 percent rating is not warranted. A 60 percent rating under DC 6603 requires FEV-1 of 40 to 55 percent predicted, or; FEV-/FVC of 40 to 55 percent predicted, or; DLCO of 40 to 55 percent predicted, or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. The May 2019 VA examiner indicated that the DLCO test result most accurately reflects the Veteran’s level of disability. The Veteran’s DLCO was above 55 percent predicted. Moreover, FVC 88 percent predicted, FEV-1 92 percent predicted, and FEV-1/FVC results were at 103 percent predicted. No oxygen therapy is required. Thus, a higher rating is not warranted under DC 6603. Even considering this disability under DC 6602, a rating in excess of 30 percent is not warranted as the Veteran’s respiratory condition did not require the use of oral or parenteral corticosteroid medication, oral bronchodilators, or antibiotics or require outpatient oxygen therapy. The Veteran also did not have at least monthly visits to a physician for required care of exacerbations. All potentially applicable DCs have been considered in this decision; however, higher ratings are not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. There are no additional expressly or reasonably raised issues presented on the record. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.