Citation Nr: 21012175 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 19-34 245 DATE: March 3, 2021 ORDER Entitlement to an initial evaluation in excess of 60 percent for residuals of lung cancer, status-post right pneumonectomy, with scar is denied. FINDING OF FACT Throughout the appeal, the Veteran has not been shown to have FEV-1 less than 40-percent predicted; FEV-1/FVC less than 40 percent; DLCO (SB) less than 40-percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); episode(s) of acute respiratory failure; or, the requirement of outpatient oxygen therapy. CONCLUSION OF LAW The criteria for an evaluation in excess of 60 percent for residuals of lung cancer, status-post right pneumonectomy, with scar are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.96, 4.97, Diagnostic Code 6843. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1966 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, the RO granted service connection for the residuals of lung cancer and assigned a noncompensable evaluation, effective from October 14, 2016. In a January 2021 rating decision, the RO increased the evaluation to 60 percent for the residuals of lung cancer, effective from October 14, 2016. Because that evaluation is less than the maximum award allowed under VA law and regulations, the claim for an increased evaluation remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Law and Analysis Neither the Veteran nor his representative has raised any other 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). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran’s disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks a higher evaluation for his service-connected residuals of lung cancer, status-post right pneumonectomy, with scar. He is currently assigned a 60 percent evaluation pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6844 for post-surgical residuals (lobectomy, pneumonectomy, etc.). Under the General Rating Formula for Restrictive Lung Disease (Diagnostic Codes 6840 through 6845) (General Rating Formula), a 60 percent evaluation is warranted for FEV-1 of 40- to 55-percent predicted; FEV-1/FVC of 40 to 55 percent; DLCO (SB) of 40- to 55-percent predicted; or, maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent evaluation is warranted for FEV-1 less than 40-percent predicted; FEV-1/FVC less than 40 percent; DLCO (SB) less than 40-percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); episode(s) of acute respiratory failure; or, the requirement of outpatient oxygen therapy. Alternatively, the General Rating Formula instructs to rate the primary disorder. Additional guidance is provided for evaluating certain manifestations of these disabilities that are not applicable based on the evidence in this case. See General Rating Formula, Notes (1)-(3). Under 38 C.F.R. § 4.96(d), there are special provisions for applying the evaluation criteria for pneumothorax and certain other respiratory diseases. In relevant part, the provisions are as follows: (4) Post-bronchodilator studies are required when pulmonary function tests (PFTs) 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. (5) 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. (6) When there is a disparity between the results of different PFTs... 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. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an evaluation in excess of 60 percent is not warranted for the residuals of lung cancer, status-post right pneumonectomy. Throughout the appeal, the Veteran has not been shown to have FEV-1 less than 40-percent predicted; FEV-1/FVC less than 40 percent; DLCO (SB) less than 40-percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); episode(s) of acute respiratory failure; or, the requirement of outpatient oxygen therapy. A February 2017 private PFT report showed results of FEV-1 of 51-percent predicted, 43-percent predicted, and 51-percent predicted. The February 2017 private PFT report noted FEV-1/FVC of 78 percent, 67 percent, and 82 percent. In the corresponding VA Disability Benefits Questionnaire (DBQ), the Veteran’s private treating physician noted a FEV-1 of 51-percent predicted and a FEV-1/FVC of 106 percent. The physician reported that PFT had been performed and the PFT results reflected the Veteran’s current pulmonary function. The physician indicated that the FVC percentage predicted most accurately reflected the Veteran’s level of disability. The physician also noted that post-bronchodilator testing had not been completed because it was not indicated for the Veteran’s condition. In an October 2017 VA medical opinion, the VA examiner indicated that the FEV-1/FVC ratio from PFTs on February 2017 was used to determine the rating for the Veteran’s residuals of lung cancer rather than the FVC, which was the value indicated on the February 2017 VA DBQ as the test result that “most accurately reflects the Veteran’s level of disability.” The VA examiner agreed with the private physician’s notation and indicated that medical literature also supported that assertion. The VA examiner noted that the private physician listed the FEV-1/FVC ratio as 106 percent in the February 2017 VA DBQ. The VA examiner related that the calculation of the average FEV-1/FVC ratio based on the February 2017 PFTs was actually 77 percent. The examiner noted that 106 percent was the first percent predicted for this ratio from spirometry values and not the actual percent for that value. However, the VA examiner also noted that the FVC and not the FEV-1/FVC ratio is the value that reflects this Veteran’s disability related to his pneumonectomy for his lung cancer as the FVC (and FEV-1) takes into account the volume of lung missing whereas the FEV-1/FVC ratio is calculated based on the function of the remaining lung and does not take into account missing lung tissue. Throughout the appeal period, the Veteran has not been shown to have cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); episode(s) of acute respiratory failure; or, the requirement of outpatient oxygen therapy. See, e.g., February 2017 VA DBQ. There are no expressly stated results of a maximum exercise capacity test, the final additional component of the 100 percent rating criteria. Nevertheless, the Board finds that the VA examinations and treatment records are adequate to decide the claim. In this regard, when a maximum exercise capacity test is not of record, the relevant rating provisions instruct to evaluate the disability on alternative criteria. See 38 C.F.R. § 4.96(d)(1)(i); see also 71 Fed. Reg. 52,457-58 (Sept. 6, 2006) (final rulemaking explaining that regulations do not require a maximum exercise capacity test be conducted in any case, and that such test is not routinely conducted). In the February 2017 VA DBQ, the private physician also stated that the PFT results accurately reflect the Veteran’s current pulmonary function. Cf. 71 Fed. Reg. at 52,458 (“In any given case, the examiner may request, based on clinical judgment, that a maximum exercise capacity test be conducted, such as in cases where the PFTs do not fully explain symptomatology.”). Based on the foregoing, the Board finds that the weight of the evidence is against an evaluation in excess of 60 percent for the residuals of lung cancer, status-post (Continued on the next page)   right pneumonectomy, with scar. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.