Citation Nr: 21067492 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-04 245 DATE: November 4, 2021 ORDER Entitlement to an initial compensable rating for a pleural based pulmonary nodule is denied. FINDING OF FACT The probative evidence of record reflects that pleural based pulmonary nodule is not manifested by Forced Expiratory Volume in one second (FEV-1) of less than 81 percent of predicted, and the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) was never less than 81 percent, nor was there any indication that Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO(SB)) was less than 81 percent of predicted. CONCLUSION OF LAW The criteria for an initial compensable disability rating for pleural based pulmonary nodule have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.96, 4.97, Diagnostic Codes 6604, 6820. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to January 1983 and from April 2006 to March 2007. This matter came to the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for pleural based pulmonary nodule, assigning a 0 percent rating, effective July 3, 2017. The Veteran presented testimony at a Board hearing in December 2020; the transcript is of record. This matter was remanded in July 2021. In this case, the Veteran's pleural based pulmonary nodule is rated pursuant to 38 C.F.R. § 4.97, Diagnostic Codes 6604-6820. Diagnostic Code 6604 governs ratings for chronic obstructive pulmonary disease (COPD), and Diagnostic Code 6820 governs ratings for benign neoplasms in any specified part of the respiratory system. Under Diagnostic Code 6820, the disability is evaluated using an appropriate respiratory analogy. Thus, the Veteran's disability is rated pursuant to 6820-6604, and the actual rating is derived using the criteria for COPD by analogy. 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. In this case, Diagnostic Code 6604 is used to evaluate the Veteran's lung condition analogous to COPD, because, when, as here, an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Diagnostic Code 6604 provides for a 10 percent rating where the Forced expiratory volume in one second (FEV-1) is 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV- 1/FVC) is 71 to 80 percent, or; when Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66- to 80-percent predicted. A 30 percent rating is assigned for FEV1 of 56-to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) of 56-to 65-percent predicted. A 60 percent rating is assigned when FEV-1 is 40- to 55-percent predicted, or; when FEV-1/FVC is 40 to 55 percent, or; DLCO (SB) is 40-to 55-percent predicted, or; when maximum oxygen consumption is 15 to 20 ml/kg in (with cardiorespiratory limit). A 100 percent rating is assigned under Diagnostic Code 6604 when FEV-1 is less than 40 percent of predicted value, or; FEV-1/FVC is less than 40 percent, or; when DLCO (SB) is less than 40-percent predicted, or; the maximum exercise capacity is less than 15 ml/kg in 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. A March 2017 VA treatment record reflects his respiratory system was negative for dyspnea, cough, hemoptysis, orthopnea and sleep apnea with positive snoring. 09/19/2017 CAPRI at 9. The Veteran was afforded a VA respiratory conditions examination in August 2017. The examiner indicated that pulmonary function testing was completed without bronchodilation (which the Veteran disputes). Testing revealed a FVC of 77 percent of the predicted value, a FEV-1 of 87 percent of the predicted value, and a FEV-1/FVC ratio of 113 percent. The DLCO test was not completed, which the examiner asserted was not indicated for the Veteran's condition. No specific justification was given for this assertion. The examiner further asserted that post-bronchodilator testing was not necessary as the Veteran's pre-bronchodilator results were normal. 08/13/2017 C&P Exam at 8-9. Per the July 2021 Board Remand, the Board found that the August 2017 VA examination was inadequate for evaluation purposes. In this regard, 38 C.F.R. § 4.96(d) states that pulmonary function tests are required and that if the DLCO test is not of record, the rater is to evaluate the Veteran's claimed disability based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. The August 2017 examiner stated that the DLCO test is not indicated for the Veteran's condition. However, the DLCO test is contemplated by the diagnostic code the Veteran is currently rated under, Diagnostic Code 6604 for COPD, suggesting that the test is generally indicated for the claimed disability. Additionally, the examiner indicated that the Veteran's pre-bronchodilator results were normal. However, the Board notes that a FVC of 77 percent of the predicted value is consistent with a 10 percent rating under some diagnostic codes, such as Diagnostic Code 6833 for asbestosis, suggesting that the Veteran's test results were not normal as indicated by the examiner. As 38 C.F.R. § 4.96(d)(4) requires that post-bronchodilator studies be completed unless the pre-bronchodilator tests are normal, and the Veteran's pre-bronchodilator FVC test indicated at least some degree of disability as contemplated by the schedule for ratings, the Board determined that the examination did not comply with 38 C.F.R. § 4.96(d)(4). As such, the Board found that a new examination must be conducted. At the December 2020 Board hearing, the Veteran indicated that he was tested both pre-and-post bronchodilator (which is inconsistent with what the VA examiner reported) and questioned whether the use of a bronchodilator was standard procedure. 12/10/2020 Hearing Transcript at 3. As noted in the preceding section, 38 C.F.R. § 4.96(d)(4) generally requires that post-bronchodilators studies be conducted. After both pre-and-post bronchodilator testing is completed, the post-bronchodilator results are used in applying the evaluation criteria. See 38 C.F.R. § 4.96(d)(5). A July 2018 VA treatment record reflects that his respiratory system was negative for dyspnea, cough, hemoptysis, orthopnea and sleep apnea; he was positive for snoring. His respirations were quiet and unlabored, and his lungs were clear throughout. 08/03/2021 CAPRI at 102-103. Private and VA treatment records reflect objective findings of a solitary nodule of the lung which is monitored annually. In September 2021, the Veteran underwent a C&P examination. The examiner indicated that the Veteran has shortness of breath due to his benign neoplasm. His condition does not require the use of oral or parenteral corticosteroid medications; the use of inhaled medications; the use of oral bronchodilators; the use of antibiotics; nor require outpatient oxygen therapy for his respiratory condition. A CT conducted in August 2019 showed that there was an unchanged pulmonary nodule, presumed to be benign based upon stability. Pulmonary function testing was performed which showed FVC was 101% predicted; FEV-1 121% predicted; FEV-1/FVC 119%; and DLCO 104 percent predicted. The examiner indicated that the FVC predicted most accurately reflects the Veteran's level of disability. His pre-bronchodilator results were normal, thus post-bronchodilator testing was not completed per § 4.96(d)(4). Exercise capacity testing was not performed. The impact of the condition is that the Veteran is impacted from doing physical activities due to being short of breath. The Board finds that the September 2021 examination is the most probative evidence of record assessing the severity of the Veteran's pulmonary nodule based on appropriate respiratory analogy. While acknowledging the Veteran's report of shortness of breath due to his pulmonary nodule, the September 2021 C&P examination does not support a compensable rating in contemplation of the COPD rating criteria per Diagnostic Code 6604. The Board has considered the Veteran's treatment records and has not found any documentation of FVC or DLCO warranting a compensable evaluation. The Veteran is competent to provide evidence about his disability; for example, he is competent to describe his shortness of breath and other symptoms related to his pulmonary nodule. He is also credible to the extent that he sincerely believes he is entitled to a higher rating. However, he is not competent to identify a specific level of disability according to the appropriate diagnostic code. Competent evidence concerning the nature and extent of the Veteran's disability was provided by the July 2021 C&P examiner who interviewed and evaluated him. The medical findings as provided in the examination report directly addresses the criteria under which this disability is evaluated. Treatment records also provide competent and credible evidence of the severity of the Veteran's pulmonary nodule. Thus, the competent lay evidence is outweighed by the competent medical evidence that evaluates the true extent of his disability. (Continued on the next page) Accordingly, the Veteran's claim for an initial increased rating is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.