Citation Nr: 21063837 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-10 339 DATE: October 18, 2021 ORDER Entitlement to an initial compensable disability rating for residuals of right lung surgery is denied. FINDINGS OF FACT 1. The Veteran declined to undergo a VA examination in connection with his claim of entitlement to an increased initial rating for residuals of right lung surgery. 2. The evidence does not show post-bronchodilator FEV-1 or FEV-1/FVC readings of 71 to 80 percent predicted value, or DLCO of 66- to 80-percent predicted value. CONCLUSION OF LAW The criteria for an initial compensable rating for the service-connected lung disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.14, 4.21, 4.96, 4.97, Diagnostic Codes 6844. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty with the United States Air Force from November 1979 to December 1992, including service in support of Operation Desert Shield/Storm. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2017. A transcript of the hearing is associated with the claims file. This case was most recently before the Board in April 2021, at which time it was remanded for additional development. The case has since returned to the Board for appellate consideration. Entitlement to an initial compensable disability rating for residuals of right lung surgery At the outset, the Board notes that, in accordance with the Board's April 2021 remand instructions, the Veteran was scheduled for a VA examination to determine the current severity of his service-connected residuals of right lung surgery. However, the record shows the Veteran declined to attend a VA examination or undergo pulmonary function testing (PFT). Pursuant to 38 C.F.R. § 3.655, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied absent a showing of good cause. In applying 38 C.F.R. § 3.655, an initial rating claim is considered an original claim. See Turk v. Peake, 21 Vet. App. 565 (2008). The Board will therefore rate the Veteran's residuals of right lung surgery based on the evidence of record. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two 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. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran seeks a higher rating for his service-connected residuals of right lung surgery, for which he has been in receipt of a noncompensable (0 percent) disability rating under 38 C.F.R. § 4.97, Diagnostic Code 6844 for the entire period on appeal. Under 38 C.F.R. § 4.97, DC 6844, post-surgical residuals (lobectomy, pneumonectomy, etc.) are rated in accordance with the criteria set forth in the general rating formula for restrictive lung disease. The general rating formula provides a 10 percent rating when pulmonary function testing (PFT) shows a forced expiratory volume in one second (FEV-1) that is 71 to 80 percent predicted or forced expiratory volume/forced vital capacity ratio (FEV-1/FVC) that is 71 to 80 percent, or when the diffusion capacity of carbon monoxide (DLCO) is 66 to 80 percent predicted. A 30 percent rating is assigned when FEV-1 is 56 to 70 percent predicted, or FEV-1/FVC is 56 to 70 percent, or the DLCO is 56 to 65 percent predicted. A 60 percent rating is assigned where FEV-1 is 40 to 55 percent predicted, or FEV-1/FVC is 40 to 55 percent, or DLCO is 40 to 55 percent predicted, or when maximum oxygen consumption is 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is assigned when FEV-1 is less than 40 percent predicted, or FEV-1/FVC is less than 40 percent, or when DLCO is less than 40 percent predicted, or when maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or there is cor pulmonale, or, right ventricular hypertrophy, or, there is pulmonary hypertension as shown by echocardiogram or cardiac catheterization, or where there are episodes of acute respiratory failure, or where outpatient oxygen therapy is required. Id. Post-bronchodilator studies are required when PFTs are conducted for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that the post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96 (d)(4). When both pre- and post-bronchodilator results are available, the post-bronchodilator results should be applied to the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96 (d)(5). Turning to the evidence, the Board notes that the Veteran was afforded a VA respiratory conditions examination in connection with his claim in December 2011. Pulmonary function testing was performed, though the examiner did not provide results, noting that the Veteran "could not follow instructions and effort was poor." The examiner indicated that the Veteran's respiratory condition impacted his ability to work in that he reported experiencing shortness of breath during moderate exertion. The Veteran was afforded a VA respiratory conditions examination in August 2015. He reported that he needed to clear his throat "in the early morning, sometimes, not every day, for [a] few hours, productive of clear phlegm." He reported having acute dyspnea since his last VA examination in December 2011, describing it as occurring every other day in the morning or when mowing the lawn or exposed to cats or dogs. Pre-bronchodilator PFT results showed an FEV-1 value of 71 percent predicted and an FEV-1/FVC value of 88 percent predicted. Post-bronchodilator PFT results were not available, as the examiner noted that the Veteran was "not cooperative." In the remarks section, the examiner wrote that spirometry was not adequately performed because the Veteran was unable to follow instructions, but his total lung capacity was greater than it was at previous testing done in December 2011. The examiner determined that the Veteran's disability did not impact his ability to work. During his September 2017 Board hearing, the Veteran's representative stated that the Veteran has a difficulty time breathing "with any type of exertion whatsoever." The representative further stated that the Veteran had trouble breathing while walking, that he could not be around smoke, and that he was constantly coughing and clearing his throat due to his disability. As noted in the Board's April 2021 remand, a VA respiratory conditions examination was completed in August 2020, albeit without in-person or telehealth examination. The examiner noted that records were adequate for evaluation of the Veteran's disability. In the remarks section, the examiner wrote that the Veteran's service-connected residuals of right lung surgery had resolved with no evidence of any chronic pulmonary residuals, and that records reviewed did not support a diagnosis of a chronic lung condition or pulmonary residual. As previously discussed, the RO attempted to schedule the Veteran for a VA examination in May 2021 in order to determine the current severity of his respiratory disability, to include administering PFTs in order to accurately determine his lung function. A May 2021 report shows that a VA examiner contacted the Veteran to attempt to discuss the status of his disability, but the Veteran declined to speak with the examiner, declined PFTs, stated that "all of this is in my records," and reported that his breathing was "fine." Overall, after careful review of the evidence of record, the Board finds that a compensable disability is not warranted for the Veteran's residuals of right lung surgery at any point during the period on appeal. The Board acknowledges the Veteran's representative's contentions concerning the Veteran's breathing difficulties during his September 2017 Board hearing; however, throughout the period on appeal, multiple VA examiners noted that the Veteran was generally not cooperative or put forth poor effort during PFTs that were necessary to determine the severity of his disability under the applicable rating criteria. The August 2015 VA examiner determined that the Veteran's disability did not impact his ability to work; the August 2020 examiner found that records indicated his disability had resolved; and the May 2021 examiner noted that the Veteran reported that his breathing was fine. The Veteran had the opportunity to attend a VA examination to determine the severity of his disability but declined. In this regard, the Board notes that VA's duty to assist is not a "one-way street," and that if the Veteran desires help with his claim, he must cooperate with VA's efforts to assist. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, based on the foregoing, the Veteran's claim for an increased initial disability rating for residuals of right lung surgery is denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. T. Raftery, 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.