Citation Nr: 21065683 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 20-02 732 DATE: October 27, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for Veteran's squamous cell carcinoma of the lung, status post left thoracotomy; chronic obstructive pulmonary disease (COPD), from March 1, 2018 to February 11, 2021 is denied. A 100 percent rating for squamous cell carcinoma of the lung, status post left thoracotomy; chronic obstructive pulmonary disease (COPD) is granted beginning February 12, 2021. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period on appeal from March 1, 2018 to February 11, 2021, the Veteran's squamous cell carcinoma of the lung, status post left thoracotomy; COPD was manifested by findings of Forced Vital Compacity (FVC) of 82 percent predicted, Forced Expiratory Value in one second (FEV-1) of 61 percent predicted, and Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 60 percent predicted without FEV-1 of 40 to 55-percent predicted, FEV-1/FVC of 40 to 55 percent, DLCO (SB) of 40 to 55-percent predicted, maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), right ventricular hypertrophy, pulmonary hypertension, episode(s) of acute respiratory failure or required outpatient oxygen therapy. 2. On February 12, 2021, the Veteran testified his disability had increased in severity. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for squamous cell carcinoma of the lung, status post left thoracotomy; COPD for the period on appeal from March 1, 2018 to February 11, 2021 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.14.14, 4.20, 4.27, 4.96, 4.114, Diagnostic Code 6819-6604 (2021). 2. Beginning February 12, 2021, a 100 percent rating for squamous cell carcinoma of the lung, status post left thoracotomy; COPD is warranted. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.14.14, 4.20, 4.27, 4.96, 4.114, Diagnostic Code 6819-6604 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from March 1974 to May 1977. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a February 2021 hearing. A transcript of the proceedings is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Veteran's claim was previously before the Board in June 2021 but was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the AOJ was directed to schedule the Veteran for a new VA examination to determine the current severity of the Veteran's service-connected squamous cell carcinoma of the lung, status post left thoracotomy; COPD. The required examination was completed in July 2021. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a disability rating in excess of 30 percent for Veteran's squamous cell carcinoma of the lung, status post left thoracotomy; COPD from March 1, 2018 to February 11, 2021 In a November 2019 rating decision, the Agency of Original Jurisdiction (AOJ) assigned an evaluation of 100 percent for the Veteran's squamous cell carcinoma of the lung, status post left thoracotomy; chronic obstructive pulmonary disease (COPD) from July 20, 2017 to February 28, 2018 based on undergoing surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure. Accordingly, the issue of entitlement to an increased rating for the Veteran's service-connected squamous cell carcinoma of the lung, status post left thoracotomy; COPD during that period when the 100 percent rating was in effect is not before the Board. In the November 2019 rating decision, the AOJ assigned a 30 percent rating for the Veteran's service-connected squamous cell carcinoma of the lung, status post left thoracotomy; COPD, as of March 1, 2018. Subsequently, an August 2021 rating decision assigned a 100 percent disability rating for the Veteran's service-connected squamous cell carcinoma of the lung, status post left thoracotomy; COPD, as of July 21, 2021. The RO chose the date of the Veteran's pulmonary function test as the effective date for the 100 percent rating. For initial rating claims and increased rating claims, "the effective date can be no earlier than the date it was factually ascertainable" that a veteran's disability was diagnosed or worsened. Swain v. McDonald, 27 Vet. App. 219, 224 n. 4 (2015). The effective date should not be "assigned mechanically" as of the date of an examination. Id. at 224. There must be a factual basis for choosing an earlier date. The Veteran testified at a Board hearing on February 12, 2021. He stated that he thought his disability had worsened since his most recent VA examination. Specifically, he stated that he could not breathe "at all," and that he was going to request an oxygen machine. He stated that he used to be able to walk six miles a day, and at the time of the hearing, he could only walk two miles. At his hearing, it was factually ascertainable that the disability worsened. Therefore, February 12, 2021 should be the effective date of the 100 percent rating. Id. To this extent, the appeal is granted. A disability rating in excess of 30 percent from March 1, 2018 to February 11, 2021 is denied for the reasons discussed below. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's service-connected COPD is rated as 30 percent under 38 C.F.R. § 4.97, Diagnostic Code 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). Diagnostic Code 6819 contemplates malignant growths of any specified part of the respiratory system exclusive of skin growths. It states that six months after cessation of treatment, the disability is rated on residuals if there is no local recurrens or metastasis. Under the Diagnostic Code 6604, a 30 percent rating is assigned for FEV-1 of 56- to 70-percent predicted, or the ratio of FEV-1/FVC of 56 to 70 percent, or DLCO (SB)) 56- to 65-percent predicted. Id. A 60 percent rating is assigned 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). Id. 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 (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. Id. Pulmonary function tests (PFTs) are generally required to evaluate COPD. If the DLCO (SB) test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. When the PFTs are not consistent with clinical findings, evaluate based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. Post-bronchodilator studies are required when PFT's are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. When evaluating based on PFTs, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. When there is a disparity between the results of different PFT's (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d). The Veteran underwent a VA Respiratory Conditions examination in November 2018. The examiner noted that the Veteran was diagnosed with squamous cell carcinoma lung, S/P left thoracotomy and Regional Lymph Node Dissection with residual scar. The examiner noted that the Veteran's lung disorder did not require the use of oral or parenteral corticosteroid medications, did require the use of inhaled medications, did not require the use of oral bronchodilators, and did not require the use of antibiotics or outpatient oxygen therapy. Pulmonary function testing was performed. The results, post-bronchodilator, were FVC 82 percent, FEV-1 61 percent, and FEV-1/FVC 60 percent. The examiner noted that the FVC predicted results most accurately reflected the Veteran's level of disability. The examiner noted that the Veteran's respiratory condition did not impact his ability to work. A private medical treatment record from December 2018 noted FVC 67 percent, FEV-1 55 percent, FEV-1/FVC 82 percent. The Board notes that one month prior in November 2018, the VA examiner determined that FVC predicted results most accurately reflected the Veteran's level of disability. Based on the above-discussed medical evidence, the Board finds that the Veteran's respiratory condition is most accurately reflected by the 30 percent disability rating criteria. A disability rating in excess of 30 percent is not warranted for this period on appeal as the Veteran's pulmonary functioning test did not establish 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), 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. 38 C.F.R. § 4.97, Diagnostic Code 6604. From March 1, 2018 to February 11, 2021, entitlement to a disability rating in excess of 30 percent for the Veteran's respiratory condition is not warranted. The Board acknowledges the contention raised by the Veteran's representative that the Veteran's exercise capacity represented full functional impairment indicative of a 100 percent disability rating. While the Veteran's private medical treatment records did note some dyspnea during exertion, the medical records do not provide the specific exercise capacity levels necessary to determine an accurate level of disability. The Board finds the November 2018 Respiratory Conditions examination to be of significantly higher probative value. The Veteran's representative also proposed that the disability should be rated using metabolic equivalents (METs). This is a metric used for rating disabilities of the cardiovascular system. 38 C.F.R. § 4.104. The Veteran's disability is specifically contemplated by the schedule of ratings for the respiratory system. 38 C.F.R. § 4.97. The Board also acknowledges the Veteran's statements that his COPD is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran's statements nor medical evidence demonstrates that the criteria for a disability evaluation in excess of 30 percent have not been met. The Board also acknowledges that the Veteran's VA treatment and private medical records note complaints of and treatment for COPD. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. To the extent that the Board herein denies a higher rating, the preponderance of the evidence is against such an award. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and higher ratings are not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to TDIU A June 2021 Board Remand directed to the AOJ to issue a decision concerning the Veteran's entitlement to TDIU. The directive stated, in pertinent part, "if the criteria for consideration of a schedular TDIU are not met, refer the case to the Director of the Compensation Service for consideration of an extraschedular TDIU." A July 2021 Supplemental Statement of the Case (SSOC) denied the Veteran's claim for entitlement to TDIU. The SSOC stated that the Veteran did meet the schedular requirement for entitlement to TDIU but did not establish that his service-connected disabilities prevented him from obtaining or following substantially gainful employment. The Board notes that the Veteran did not meet the schedular requirement for entitlement to TDIU until March 24, 2021. The AOJ did not fulfill the remand directive to refer the case for to the Director of Compensation Service for consideration of extraschedular TDIU for the period on appeal. Accordingly, the Board finds there has not been substantial compliance with the remand instructions. See Stegall, 11 Vet. App. at 271; see also D'Aries, 22 Vet. App. at 105. Accordingly, the matters are REMANDED for the following action: 1. Refer the case to the Director of the Compensation Service for consideration of an extraschedular TDIU for the period on appeal prior to February 12, 2021. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.