Citation Nr: 21013461 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 09-40 000 DATE: March 9, 2021 ORDER Entitlement to a compensable evaluation for left pneumothorax prior to May 17, 2016, and in excess of 10 percent thereafter is denied. Entitlement to service connection for a left foot condition is denied. REMANDED Entitlement to service connection for bilateral hip arthritis is remanded. Entitlement to service connection for right foot arthritis is remanded. FINDINGS OF FACT 1. Prior to May 17, 2016, the Veteran’s left pneumothorax resulted in a minimal obstructive lung defect. 2. From May 17, 2016, the Veteran’s left pneumothorax did not result in an FEV-1/FVC pulmonary function test result lower than 71 percent. 3. The evidence is against a finding that the Veteran has a current left foot condition other than his service-connected radiculopathy of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for left pneumothorax prior to May 17, 2016, and in excess of 10 percent thereafter have not been met. 38 C.F.R. § 4.96, 4.97; 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.56, 4.96, 4.97, Diagnostic Code 6843 (2020). 2. The criteria for service connection for residuals of a left foot condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1960 to April 1963, October 1963 to September 1966, and January 1967 to April 1982. These matters are on appeal to the Board of Veterans’ Appeals (Board) from a November 2008 decision The matters were previously before the Board in March 2016 and May 2019, when they were remanded for further development. 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). Increased Rating 1. Entitlement to a compensable evaluation for left pneumothorax prior to May 17, 2016, and in excess of 10 percent thereafter The Veteran was granted service connection for spontaneous left pneumothorax in a September 1982 rating decision. On October 12, 2007, the Veteran filed the present claim contending that symptoms of the pneumothorax are more severe than the noncompensable rating reflected. A June 2016 rating decision increased the disability rating to 10 percent, effective May 17, 2016. As an initial matter, the Board notes that the Veteran is separately service connected for a pneumothorax surgery scar from May 2, 1982. The Veteran was denied service connection for chronic obstructive pulmonary disease (COPD) in an August 2014 rating decision, which is not on appeal before the Board. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 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. See 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 to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Diagnostic Code 6814 was in effect at the time the Veteran was originally granted service connection for pneumothorax in 1982. That Diagnostic Code was replaced in 1996 by Diagnostic Code 6843, which provides for rating under a General Rating Formula for Restrictive Lung Disease, and applies to the Veteran’s current appeal. The general rating formula provides for: A 10 percent evaluation for FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted. A 30 percent rating is warranted for FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted. A 60 percent rating is warranted 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). A 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (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. Note (2) provides that following episodes of total spontaneous pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall continue for three months from the first day of the month after hospital discharge. 38 C.F.R. § 4.97, Diagnostic Code 6843. There are special provisions for the application of the rating criteria for certain diagnostic codes, including DC 6843. 38 C.F.R. § 4.96(d) (2020). PFTs are required to evaluate these conditions, except when the results of maximum exercise capacity test are of record and are 20 ml/kg or less; when pulmonary hypertension cor pulmonale, or right ventricular hypertrophy has been diagnosed; or when there have been one or more episodes of acute respiratory failure. 38 C.F.R. § 4.96(d)(1). If DLCO (SB) results are not of record, such conditions are evaluated based on alternative criteria as long as the examiner states why the test would not be useful of valid in a particular case. 38 C.F.R. § 4.96(d)(2). When PFTs are not consistent with clinical findings, conditions are evaluated based on the PFTs unless the examiner states why they are not a valid indication or respiratory functional impairment in a particular case. 38 C.F.R. § 4.96(d)(3). Post-bronchodilator studies are required when 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. 38 C.F.R. § 4.96(d)(4). When evaluating based on PFTs, 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). Additionally, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Turning to the evidence for the period on appeal, in December 2007, the Veteran reported feeling pain in his left chest area when breathing and said that sometimes the lung “catches” and he can take only short breaths. The Veteran underwent a VA Examination in April 2008. The Veteran said that his symptoms onset during service and he was hospitalized at that time. The Veteran said that there has been no recurrence, but he reported occasional chest pain at irregular intervals. He had no history of coughing or wheezing or dyspnea, but has a history of occasional chest pain on exertion. A chest X-ray was within normal limits. A pulmonary function test (PFT) indicated “minimal obstructive lung defect with decrease in peak flow and flow at 50% and 75%. Mild decrease in diffusing capacity, FVC changed by 11 percent, FEV1 changed by 17%, FEF 25-75 changed by 31%, good response to bronchodilator.” The examiner said that the Veteran has status post pneumothorax coinciding with mild COPD, and that these conditions have a moderate effect on his chores and shopping; make it impossible to engage in sports; have a mild effect on recreation and travelling; and have no effect on feeding, bathing, dressing, toileting, or grooming. In June 2008, the Veteran wrote to VA and stated that his lung condition had worsened, and that it was now painful when he breathes. An August 2008 VA treatment record of an annual examination of the Veteran stated that his breathing was not labored and that there was no dullness. In a December 2008 Notice of Disagreement, the Veteran said that he had shortness of breath and he could only move very carefully, and that he had severe pain in his chest area. The Veteran said that the April 2008 examiner was not thorough. In September 2009, the Veteran underwent another VA examination. The pulmonary tech stated that the Veteran made minimal effort during the attempted pulmonary function test (PFT) and that the test results may not be valid. A computer interpretation suggested minimal obstructive defect with a good response to bronchodilator. In November 2009 and June 2010, the Veteran wrote to VA that the September 2009 examiner did a poor job. In May 2011 the Veteran underwent another compensation and pension examination for the respiratory system. The Veteran had a history of non-productive cough and spontaneous pneumothorax, but no productive cough, dyspnea, asthma, or respiratory failure. A chest X-ray showed no active diseases, and the report indicates that PFT results were “pending.” The examiner diagnosed a remote history of pneumothorax and stated that there was no effect on the Veteran’s usual daily activities. In August 2014, the Veteran wrote to VA concerning his claim for service connection for COPD. In May 2016, the Veteran was afforded another compensation and pension examination for respiratory conditions. The examiner diagnosed a left pneumothorax and said that a May 2016 chest X-ray showed that his lungs were somewhat hyperventilated with flattening of the hemidiaphragms and increased lucency in the upper lobes. The examiner said that these findings are consistent with chronic obstructive lung disease, but there was no focal consolidation or pneumothorax, and the thoracic spine showed moderate degenerative changes. PFT results were (pre-bronchodilator): FVC 70%, FEV-1 67%, and FEV-1/FVC 69.52%. Post-bronchodilator results were: FVC 77%, FEV-1 84%, and FEV-1/FVC 76.70%. The examiner stated that FVC most accurately reflected the Veteran’s level of disability. Another VA examination for respiratory conditions was completed in February 2017. The examiner diagnosed COPD and spontaneous pneumothorax, resolved. The Veteran reported that while in service he suddenly developed shortness of breath and left chest pain and that a chest X-ray showed a spontaneous pneumothorax. The examiner said that the pneumothorax has since resolved and that the Veteran shows no residual symptoms. A February 2017 chest X-rays showed COPD but was otherwise normal. A pulmonary function test (PFT) showed pre-bronchodilator readings of: FVC 69%, FEV-1 63%, and FEV-1/FVC 92%; post-bronchodilator FVC 66%, FEV-1 48%, FEV-1/FVC 74%. The examiner said that FEV-1/FVC most accurately reflected the Veteran’s level of disability. In October 2017, the Veteran wrote to VA that his lung hurt much worse now and made arguments concerning his COPD claim. In September 2020 a Disability Benefits Questionnaire for respiratory conditions was prepared. The examiner diagnosed a left pneumothorax which was fully resolved. A chest X-ray showed a normal chest. PFT pre-bronchodilator showed FVC 56%, FEV-1 61%, FEV-1/FVC 79.24%; post-bronchodilator FVC 61%, FEV-1 63%, FEV-1/FVC 74.84%. The examiner said that FEV-1/FVC most accurately reflects the Veteran’s level of disability. In December 2020, the Veteran again wrote to VA and reported pain in his lung when breathing. In evaluating the Veteran’s increased rating claim, the Board has also considered whether the Veteran is entitled to a separate or higher rating under other potentially applicable diagnostic codes referable to respiratory disabilities; however, the rating schedule provides that DCs 6600-6817 and 6822-6847 will not be combined with each other. 38 C.F.R. § 4.96(a). Where there is lung or pleural involvement, ratings under DCs 6819 and 6820 will not be combined with each other or with DCs 6600 through 6817 or 6822 through 6847. Id. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher rating where the severity of the overall disability warrants such rating. Id. Therefore, the Board will proceed with the evaluation of the Veteran’s spontaneous pneumothorax with residual scar under the General Rating Formula for Restrictive Lung Disease pursuant to DC 6843. For the appeal period prior to May 17, 2016, there are no complete PFT test results available in order to assign a disability rating. Considering the other criteria for use under the General Rating Formula, the record does not show 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, or hospitalization for pneumothorax (per Note 2 to the General Rating Formula). 38 C.F.R. § 4.97. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. As the evidence does not show that the left pneumothorax met the requirements for a compensable evaluation during this period, a noncompensable rating is warranted. From May 17, 2016, forward, the record has pulmonary function test data to aid in assigning an appropriate rating. Applying the criteria of the General Rating Formula for Restrictive Lung Disease, the three PFTs completed during the appeal period do not call for a rating in excess of 10 percent. As noted above, VA is required to use post-bronchodilator results for rating purposes unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5). In the May 2016 PFT, the (higher) post-bronchodilator PFT results, the Veteran had FVC 77%, FEV-1 84%, and FEV-1/FVC 76.70%. In the February 2017, the (higher) pre-bronchodilator results were FVC 69%, FEV-1 63%, and FEV-1/FVC 92%, and the examiner said that the FEV-1/FVC most accurately reflected the Veteran’s level of disability. Finally, in the September 2020 PFT, the (higher) post-bronchodilator results were FVC 61%, FEV-1 63%, FEV-1/FVC 74.84%, and the examiner stated that the FEV-1/FVC results most accurately reflected the Veteran’s level of disability. Of these, the post-bronchodilator May 2016 results, the February 2017 pre-bronchodilator FEV-1/FVC result, and the September 2020 post-bronchodilator FEV-1/FVC result, none were lower than 71 percent. Additionally, the evidence for this period does not show 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, or hospitalization for pneumothorax (per Note 2 to the General Rating Formula). 38 C.F.R. § 4.97. Therefore, a rating in excess of 10 percent is not warranted under the General Rating Formula for Restrictive Lung Disease. Id. The Board notes that the May 2016 examiner said that the chest X-ray findings were consistent with chronic obstructive lung disease, but there was no evidence of pneumothorax. The February 2017 examiner stated that the pneumothorax was resolved, and the September 2020 examiner stated that the pneumothorax was fully resolved. The Veteran has reported pain in his left lung throughout the appeal period. The Board acknowledges that pain can cause disability to the extent that it produces functional limitation. Saunders v. Wilkie, 886 F.3d 1356 (2018). Here, the objective medical evidence does not show that the Veteran’s lung pain results in functional impairment that would be considered a separate disability for compensation purposes. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a compensable disability rating for left pneumothorax prior to May 17, 2016, and to a rating in excess of 10 percent thereafter is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service Connection 2. Entitlement to service connection for a left foot condition The Veteran has contended that he has bilateral hip conditions and bilateral feet conditions which warrant service connection. The bilateral hip and right foot conditions are addressed below in the Remand section. This section will address only the claim for service connection of a left foot condition. As an initial matter, the Board notes that the Veteran has been separately granted service connection for radiculopathy of the bilateral lower extremities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Turning to the evidence, the Veteran reported left foot pain in April 1975 while playing volleyball. An X-ray showed lateral malleolus osteophyte formations. A VA examination in September 1982 noted no complaints of foot problems. In October 2007, the Veteran claimed service connection for pain in his feet. An April 2008 VA Compensation and Pension Examination report told VA that it was not necessary to examine the joints and feet, as the Veteran’s symptoms were not related to the joints or feet but were neurological in nature. In an August 2008 VA annual examination, the clinician noted no issues with the Veteran’s hips or legs or feet. An August 2015 VA podiatry note said that the Veteran’s pain and numbness in his feet are due to neuropathy. A May 2016 VA examination of the feet found arthritis in the right foot but no disability or disorder in the left foot. The Veteran reported shooting pains in the left foot, and the examiner said that this was due to the radiculopathy. In October 2016, the Veteran again wrote to VA and stated that he had shooting pains in his bilateral legs. A February 2017 addendum opinion stated that diagnostic testing showed traumatic or degenerative arthritis in the right foot only. The examiner said that there was no evidence of left foot osteophyte formation. The Veteran reported increased pain and tingling in his feet and legs in October 2017. In November 2019, a compensation and pension examination found no disability and no functional impairment in the left foot. The clinician stated that “there is no objective evidence to support a diagnosis for the claimed left foot condition at this time.” Turning to the criteria for service connection, the weight of the evidence is against a finding that the Veteran has a current left foot disability. The Board acknowledges the Veteran’s statements concerning pain and numbness and tingling in the left foot and leg, but the Board notes that the Veteran is separately service connected for radiculopathy of the left leg. The competent medical opinions of April 2008, May 2016, February 2017, and November 2019 indicated that there is no left foot disability other than the radiculopathy of the left lower extremity. The evidence is against a finding that the Veteran has a current disability of the left foot. As the Board finds that the weight of the evidence is against the Veteran having a current left foot disability, the claim for service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (disallowing service connection where there was no current disability). In reaching the above conclusions, 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, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b) (West 2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  REASONS FOR REMAND Entitlement to service connection for a left hip condition, a right hip condition, and a right foot condition is remanded. The claims for service connection for the left and right hip condition and right foot condition were remanded in May 2019. The Board requested a medical opinion as to whether the Veteran’s service-connected back condition or radiculopathy of the lower extremities caused or aggravated his hip and right foot conditions. A medical opinion was prepared in November 2019. The opinion stated that there is no aggravation of the Veteran’s bilateral hip arthritis and hallux valgus and arthritis of the right foot because they “are secondary to Degenerative Disc Disease, Degenerative Joint Disease, and Bilateral lower extremity radiculopathy/Peripheral neuropathy.” The opinion did not include a rationale for its conclusion. A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, remand is necessary for a new opinion that supports its conclusion with a rationale. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from December 2020 to the present. 2. After obtaining any additional records, obtain an addendum opinion from an appropriate clinician regarding the Veteran’s right foot disability, to include osteoarthritis of the right foot, and his left and right hip disabilities, to include hypertrophic degenerative changes. The electronic claims file must be made available to the clinician. If and only if the clinician deems it necessary, schedule the Veteran for a VA examination. Based on review of the pertinent evidence of record, (and any tests, studies or examination deemed necessary) the clinician should provide the following opinions: (a.) Whether it is at least as likely as not (50 percent or better probability) that the Veteran’s right foot disability, to include osteoarthritis of the right foot is aggravated by (where aggravation is any increase in severity beyond the natural progress of the disability) his service-connected low back disability and/or service-connected radiculopathy/peripheral neuropathy of the bilateral lower extremities? (b.) Whether it is at least as likely as not (50 percent or better probability) that the Veteran’s left and right hip disabilities, to include hypertrophic degenerative changes is aggravated by (where aggravation is any increase in severity beyond the natural progress of the disability) his service-connected low back disability and/or service-connected radiculopathy/peripheral neuropathy of the bilateral lower extremities? (c.) The examiner’s attention is directed to the November 2019 examiner’s conclusion that the hip arthritis and hallux valgus and arthritis of the right foot “are secondary to Degenerative Disc Disease, Degenerative Joint Disease, and Bilateral lower extremity radiculopathy/Peripheral neuropathy.” The opinion must be based on medical principles and consideration of the Veteran’s entire disability picture. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.