Citation Nr: 21070901 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-52 291 DATE: November 26, 2021 ORDER Entitlement to a rating greater than fifty percent for obstructive sleep apnea with pleural fibrosis, also claimed as chronic obstructive pulmonary disease (COPD) is denied. Entitlement to an increased initial 30 percent rating for scars associated with a right lower lobectomy is granted. REMANDED The issue of entitlement to separate compensation for shortness of breath and fatigue associated with pleural fibrosis is remanded. The issue of entitlement to separate compensation for rib pain is remanded. The issue of entitlement to service connection for cracked vertebrae in the neck is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's obstructive sleep apnea requires use of a breathing assistance device, namely a continuous airway pressure machine (CPAP). It did not result in a tracheostomy nor did it result in chronic respiratory failure with carbon dioxide retention or cor pulmonale. 2. The Veteran has 5 scars post right lower lobectomy which have been painful for the entire appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than fifty percent for obstructive sleep apnea with pleural fibrosis, also claimed as COPD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96,4.97, Diagnostic Codes 6845-6847. 2. For the entire period on appeal, the criteria for an increased initial 30 percent rating for scars status post right lower lobectomy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1967 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July and September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in May 2020 at which time the Board granted an initial rating of 10 percent for scarring and remanded the remainder for further development. In October 2019 and August 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ), and a transcript of the hearings are of record. During the hearings, the Veteran raised the issues of entitlement to compensation for a broken neck, shortness of breath and fatigue, and rib pain secondary to his respiratory condition. Thus, those issues are also within the scope of the respiratory claim. See 38 C.F.R. § 3.155(d)(2); Baily v. Wilkie, 33 Vet. App. 188 (2021). Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.10, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). However, that is not the case where the Veteran has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Separate ratings may be assigned for separate periods of time based on the facts founda practice known as "staged rating". Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to a rating greater than fifty percent for obstructive sleep apnea with pleural fibrosis, also claimed as chronic obstructive pulmonary disease (COPD) is denied. When there are coexisting respiratory conditions where there is lung or pleural involvement, ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 are not combined with each other. Instead, a single rating is assigned under the diagnostic code which reflects the predominant disability with evaluation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96. Here the Veteran is service connected for obstructive sleep apnea with pleural fibrosis, claimed as COPD, secondary to pleural plaques, also claimed as COPD. His lung conditions have been evaluated under the General Rating Formulas for restrictive lung disease. Under the formula for chronic pleural effusion or fibrosis, a 10 percent rating is warranted where the forced expiratory volume in one second (FEV-1) is 71- to 80-percent of predicted value, or; the ratio of (FEV-1) to forced vital capacity (FEV-1/FVC) is 71 to 80 percent, or; diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO) (SB) is 66- to 80-percent of predicted value. A 30 percent rating is warranted where FEV-1 is 56- to 70-percent of predicted value, or; FEV-1/FVC is 56 to 70 percent, or; DLCO (SB) is 56- to 65-percent predicted. A 60 percent rating is warranted where FEV-1 is 40- to 55- percent predicted, or; FEV-1/FVC is 40 to 55 percent predicted, or; DLCO (SB) of 40- to 55- percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardio respiratory limit). A 100 percent rating is warranted 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. 38 C.F.R. § 4.97 Diagnostic Code 6845. Under the formula for obstructive sleep apnea, a noncompensable rating is warranted for asymptomatic sleep apnea; a 30 percent rating is warranted when the condition manifests as persistent day-time hypersomnolence; a 50 percent rating is warranted when the Veteran requires use of a breathing assistance device such as continuous airway pressure (CPAP) machine; and a 100 percent rating is warranted when the condition manifests as chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requires tracheostomy. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are done for disability evaluation purposes except when pre-bronchodilator PFT results are normal, or the examiner determines they should not be done and explains why. 38 C.F.R. § 4.96(d)(4). When evaluating based on pulmonary function tests, post-bronchodilator results are to be used unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case, the pre-bronchodilator results are used for rating purposes. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different PFTs such that the level of evaluation would differ depending on which test result is used, the regulations instruct use of the test result that the examiner states most accurately reflect the level of disability. 38 C.F.R. § 4.96(d)(6). If the FEV-1 and the FVC are both greater than 100 percent, then a compensable evaluation cannot be assigned based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96(d)(7). During a September 2015 VA examination, the examiner noted that the Veteran did not require the use of oral or parenteral corticosteroid medication, antibiotics, oxygen therapy, oral bronchodilator therapy for his respiratory condition, or the use of daily inhaled medications. Pulmonary function testing revealed the following spirometry and lung function values: pre-bronchodilator -- FVC 84 percent predicted, FEV-1 89 percent predicted, FEV1/FVC 106 percent predicted, and DLCO 72 percent predicted; and post-bronchodilator -- FVC 87 percent predicted, FEV-1 94 percent predicted, and FEV1/FVC 108 percent predicted, and DLCO 96%. The examiner indicated that FEV-1 most accurately reflected the Veteran's level of disability. Diagnostic testing included a January 2015 chest x-ray and a January 2015 computed tomography (CT) scan, which showed findings consistent with pleural plaques and nodules. There were no other significant findings. The Veteran reported his respiratory condition did not impact his ability to work. During an October 2017 VA examination, the examiner noted that the Veteran did not require the use of oral or parenteral corticosteroid medication, antibiotics, oxygen therapy, or oral bronchodilator therapy for his respiratory condition but required the use of intermittent inhaled medications. Pulmonary function testing revealed the following spirometry and lung function values: pre-bronchodilator -- FVC 76 percent predicted, FEV-1 81 percent predicted, and FEV1/FVC 107 percent predicted; and post-bronchodilator -- FVC 79 percent predicted, FEV-1 89 percent predicted, and FEV1/FVC 111 percent predicted. The examiner did not indicate which test most accurately reflected the Veteran's level of disability. A DLCO testing wat not completed because it was not available. Diagnostic testing included an October 2017 chest x-ray which showed findings consistent with asbestosis and rib section. There were no other significant findings. The Veteran reported his respiratory condition impacted his ability to work. During an October 2020 VA examination, the examiner noted that the Veteran did not require the use of oral or parenteral corticosteroid medication, antibiotics, oxygen therapy, or oral bronchodilator therapy for his respiratory condition but required the use of daily inhaled medications. Pulmonary function testing revealed the following spirometry and lung function values: pre-bronchodilator -- FVC 62 percent predicted, FEV-1 71 percent predicted, FEV1/FVC 114 percent predicted, and DLCO 72 percent predicted (from a 2015 study); and post-bronchodilator -- FVC 64 percent predicted, FEV-1 75 percent predicted, and FEV1/FVC 116 percent predicted. The examiner indicated that DLCO most accurately reflected the Veteran's level of disability. A DLCO was attempted but the Veteran failed to appear for such examination and an additional reschedule attempt was not initiated because the report was expedited. A January 2021 pulmonary function test revealed the same results. See 5/3/2021 C&P Examination. The examiner noted that the Veteran's respiratory condition impacted his ability to work due to shortness of breath. Based on the above referenced VA examinations, the Veteran would be entitled to a 30 percent rating at most under diagnostic code 6845 for chronic pleural effusion or fibrosis. On the other hand, an October 2020 sleep apnea VA examination noted use of a CPAP and persistent daytime hypersomnolence. It did not, however, indicate respiratory failure, carbon dioxide retention, cor pulmonale, or tracheostomy. Thus, the Veteran would be entitled to a 50 percent rating under diagnostic code 6845. Because the Veteran's multiple respiratory conditions may not be combined, and a single rating must be assigned under the diagnostic code which reflects the predominant disability, the Veteran is entitled to a 50 percent rating under the rating code for his predominant disability, obstructive sleep apnea. Because his disability does not rise to the level of a 100 percent rating under the predominant disability, a rating greater than 50 percent is denied. To the extent that the Veteran argued at his most recent Board hearing that the 50 percent rating assigned for sleep apnea does not adequately compensate him for the shortness of breath he experiences during routine daily activities, this aspect of his claim is addressed in the remand below, as is the Veteran's complaint of rib pain. 2. Entitlement to an initial rating greater than 10 percent for scars post right lower lobectomy is granted. The Veteran is entitled to a 30 percent rating for his scars post right lower lobectomy. Diagnostic Codes 7800 to 7805 pertain to scars. 38 C.F.R. § 4.118. The Schedule of ratings for the skin were amended effective August 13, 2018. See 38 Fed. Reg. 32,592 (July 13, 2018). Prior to August 13, 2018, the Board will consider the former version of the diagnostic codes only; however, for the period beginning August 13, 2018 the Board will consider both the old and amended version of the diagnostic codes and rate based on whichever is most favorable to the Veteran. Under both the former and amended criteria, Diagnostic Code 7804 provides for a 10 percent disability evaluation for one or two scars that are unstable or painful. A 20 percent evaluation is assigned where there are three or four scars that are unstable or painful. A 30 percent evaluation is assigned where there are five or more scars that are unstable or painful. An unstable scar is one where there is frequent loss of covering of skin over the scar. Under both the former and amended codes, pursuant to Diagnostic Code 7805, a scar may be rated on any disabling effect(s) not considered as part of Diagnostic Codes 7801 to 7804. Upon VA examination of the Veteran's scars, the Veteran was found to have 5 painful scars of the anterior trunk measuring 18 x 0.2 centimeters, 4 x 0.2 centimeters, 4 x 0.2 centimeters, 1 x 0.2 centimeters, and 1 x 0.2 centimeters. See 5/4/2021 C&P Examination. During the October 2021 hearing, the Veteran reported that his scars caused him pain during the entirety of the appeal period. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); Barr v. Nicholson, 21 Vet. App. 303(2007); 38 C.F.R. § 3.159(a)(2). Thus, the Board now finds that the Veteran is entitled to an initial rating of 30 percent throughout the appeal period. REASONS FOR REMAND 1. The issue of entitlement to service connection for cracked vertebrae in the neck is remanded Under 38 C.F.R. § 3.155(d)(2), the Board is required to refer to the AOJ for adjudication in the first instance claims for entitlement to secondary service connection that are reasonably raised during the adjudication of a formally initiated increased rating claim, regardless of whether a Veteran files a separate, formal claim for entitlement to secondary service connection. See Bailey v. Wilkie, 33 Vet. App. 188 (2021). According to the Veteran, in October 2020 he began to have a coughing fit due to his service-connected respiratory condition. He ultimately fainted, fell off of his porch, and broke his neck. See, e.g., 8/5/2021 Hearing Transcript; 7/30/2021 VA21-4138. Therefore, remand to evaluate the Veteran's claim for entitlement to service connection for a neck disability secondary to his service-connected respiratory disability is required. 2. The issue of entitlement to separate compensation for shortness of breath associated with pleural fibrosis is remanded. As discussed above, when there are coexisting respiratory conditions where there is lung or pleural involvement, ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 are not combined with each other. Instead, a single rating is assigned under the diagnostic code which reflects the predominant disability with evaluation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96. That notwithstanding, once VA receives a complete claim, it must adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition, including those identified by the rating criteria for that condition in the rating schedule."). See 38 C.F.R. § 3.155(d)(2). Here, the Veteran has persuasively argued that the rating criteria pertaining to obstructive sleep apnea do not adequately compensate him for his shortness of breath and fatigue. To this end, the Board observes that the rating schedule allows for the assignment of disability ratings by analogy under the diagnostic code for 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. Here, a rating code premised on METs may be an appropriate analogous diagnostic code. Whether such is appropriate, however, is unclear to the Board, as the record reflects that the Veteran has a current diagnosis of cardiovascular disease for which he is not service connected. To clarify the matter, remand for an examination is warranted. 3. The issue of entitlement to separate compensation for rib pain is remanded. The Veteran has complained of rib pain on breathing and when laying on his side throughout the appeal period which he associates with his respiratory condition. A review of the record reflects that on CT scan in November 2013, subacute left rib fractures were observed. Subsequent records demonstrate that the Veteran complained of rib pain, both with breathing and when lying down. The Board acknowledges a rating for rib resection or removal is not to be applied with ratings for purulent pleurisy, lobectomy, pneumonectomy, or injuries of pleural cavity. 38 C.F.R. § 4.72, Diagnostic Code 5297 Note (1). Here, however, the Veteran's respiratory condition is rated based on sleep apnea as the predominant respiratory disability, such that separate compensation under Diagnostic Code 5297 may be appropriate. The etiology of the Veteran's rib pain, however, is unclear. As such, remand for an examination is required. 4. Entitlement to a TDIU is remanded A TDIU claim can be expressly raised or inferred, by the Veteran's contentions and the evidence of record. Rice v. Shinseki, 22 Vet. App. 447 (2009). If there is evidence of unemployability at the time of an increased rating claim challenging the initial disability rating assigned for the disability upon which the unemployability is based, entitlement to TDIU, including the effective date for that award, is part and parcel of the determination of the initial rating for that disability. Id. at 454-55. A request for TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather, it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Id. at 453-54. Once the issue of entitlement to TDIU is raised, it is "part of the claim for benefits for the underlying disability." Id. A TDIU may be assigned where the schedular rating is less than total, when the Veteran is, in the judgement of the rating agency, unable to secure or follow a substantially gainful occupation consistent with his education, training, and work experience as a result of service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Neither the Veteran's age nor nonservice-connected impairment may be considered. 38 C.F.R. §§ 3.341, 4.16a, 4.19. If there is only one service-connected disability, that disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Here, the Veteran's respiratory conditions are service connected at 50 percent and he has a combined rating of 90 percent. Therefore, he meets the schedular threshold for consideration for TDIU. Beginning in the October 2017 VA examination, the Veteran reported that his respiratory condition impacted his work. He did not, however, indicate that he was unemployable. Further development is needed to determine the Veteran's employability as it relates to his service-connected respiratory conditions. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his neck condition. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. After examining the Veteran and considering his reported history, including a review of the claims file, the clinician should provide an opinion regarding the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's neck condition was caused by discomfort or uncontrollable coughing associated with the Veteran's service-connected respiratory condition? In other words, is it at least as likely as not that the Veteran's service-connected respiratory condition caused him to "faint", fall off of his porch, and break his neck? See, e.g., 8/5/2021 Hearing Transcript; 7/30/2021 VA21-4138. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his shortness of breath and fatigue. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. After examining the Veteran and considering his reported history, including a review of the claims file, the clinician should provide an opinion regarding the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's shortness of breath and fatigue are associated with his pleural fibrosis? If so, is it medically feasible to measure the shortness of breath and fatigue using METs as opposed to pulmonary function tests, considering that the rating schedule does not permit the assignment of multiple ratings for both pleural fibrosis and sleep apnea. In other words, do the rating criteria applicable to sleep apnea adequately encompass the signs and symptoms otherwise attributable to the Veteran's pleural fibrosis? (b.) If it is not medically feasible to measure the shortness of breath and fatigue associated with pleural fibrosis using METs as opposed to pulmonary function tests, please offer an opinion as to whether it is at least as likely as not that the Veteran's obstructive sleep apnea caused his cardiovascular disease. Please note that there is no temporal requirement for a causal relationship to be found; that is, the sleep apnea need not have preceded the cardiovascular disease. (c.) If you determine that the Veteran's obstructive sleep apnea did not cause his cardiovascular disease, please offer an opinion as to whether it is at least as likely as not that the Veteran's obstructive sleep apnea aggravated (worsened beyond natural progression) his cardiovascular disease. Please note that aggravation need not be permanent in nature. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his rib pain. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. After examining the Veteran and considering his reported history, including a review of the claims file, the clinician should provide an opinion regarding the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's rib pain is associated with rib resection carried out in conjunction with a lobectomy? (b) If the Veteran did not undergo rib resection, is it at least as likely as not that his rib pain, to include as a result of subacute fractures, is associated with injury sustained as a result of coughing due to pleural fibrosis and/or obstructive sleep apnea? A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 4. Provide the Veteran with VA Form 21-8940. Document all attempts to obtain employment information and associate with the claims file. Following a review of the form and any additional evidence provided, the RO should make an initial determination regarding entitlement to a TDIU. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.