Citation Nr: 21032725 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-37 862 DATE: May 27, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for status post right upper lobectomy from September 1, 2016 is denied. Entitlement to an initial compensable evaluation for scar, right upper chest associated with status post right upper lobectomy (previously rated as adenocarcinoma right lung, status post right upper lobe lobectomy with scar) is denied. Entitlement to a total disability rating based on individual employability (TDIU) on a schedular basis, prior to October 17, 2014, is denied. REMANDED Entitlement to a TDIU on an extraschedular basis, prior to October 17, 2014, is remanded. FINDINGS OF FACT 1. Pulmonary function tests (PFTs) using the ration of Forced Expiratory Volume in one second (FEV-1) most accurately reflect the level of the Veteran's lung disability. 2. From September 1, 2016, the Veteran's service-connected status post right upper lobectomy has been manifested by FEV-1 greater than 55 percent. The disability is not treated with monthly visits to a physician for required care of exacerbations, or intermittent courses of systemic corticosteroids. 3. The Veteran has one scar located on his chest that is not unstable or painful, and does not cause functional limitation. 4. Prior to October 17, 2014, the Veteran had a combined rating of 20 percent due to service-connected bilateral hearing loss, rated as 10 percent disabling, and tinnitus, rated as 10 percent disabling, not including his temporary convalescent period from April 2014 for his service-connected status post right upper lobectomy. 5. The Veteran first satisfied the schedular requirements for a TDIU as of October 17, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 30 percent for status post right upper lobectomy from September 1, 2016 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.97, Diagnostic Codes 6819-6602, 6844. 2. The criteria for entitlement to an initial compensable rating for scar, right upper chest associated with status post right upper lobectomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7805. 3. The criteria for a TDIU on a schedular basis prior to October 17, 2014 have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from August 1964 to August 1967. These matters come to Board of Veteran's Appeals (Board) on appeal from a September 2014 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Board previously remanded the case for further development in October 2018. The case has since been returned to the Board for appellate review. The Board notes that when the Veteran initially appealed the lobectomy increased rating claim the issue was characterized as "adenocarcinoma right lung s/p right upper lobe lobectomy with scar." During the appeal period, in a June 2020 rating decision, the RO separated the single issue into two issues. As associated scar was part of the Veteran's initial appeal, the Board will adjudicate whether a higher rating is warranted for such scar. 1. Entitlement to an initial rating in excess of 30 percent for status post right upper lobectomy from September 1, 2016 2. Entitlement to an initial compensable evaluation for scar, right upper chest associated with status post right upper lobectomy Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). By way of history, in a September 2014 rating decision, the RO granted service connection for adenocarcinoma right lung, status post right upper lobe lobectomy with scar (claimed as lung cancer, upper lobe of right lung removed), with a temporary evaluation of 100 percent for convalescence after right upper lobectomy, effective April 24, 2014. The Veteran received a letter dated December 2015 notifying the Veteran that the VA proposed to reduce his prior evaluation of his adenocarcinoma right lung, status post right upper lobe lobectomy with scar, from 100 percent to 30 percent in 60 days unless the Veteran submitted medical or other evidence to show that the VA should not make this change. In a rating decision dated May 2016, the RO decreased the evaluation of adenocarcinoma right lung, status post right upper lobe lobectomy with scar, from 100 percent disabling to 10 percent effective September 1, 2016. In a rating decision dated June 2020, the RO increased the rating decision for status post right upper lobectomy (previously rated as adenocarcinoma right lung, status post right upper lobectomy with scar) from 10 percent disabling to 30 percent disabling, effective September 1, 2016. Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Initially, the Board acknowledges that the Veteran's status post right upper lobectomy was awarded a total (100 percent) rating from April 24, 2014 to September 1, 2016 under 38 C.F.R. § 4.30 convalescent rating. As the Veteran was rated total, the Board need not address this period. See Murphy v. Shinseki, 26 Vet. App. 510 (2014). The Veteran's status post right upper lobectomy is currently evaluated as 30 percent disabling, effective September 1, 2016, under Diagnostic Code 6819-6602. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 6819 is for malignant neoplasms of any part of the respiratory system. It notes that a 100 percent evaluation is for assignment beyond the cessation of any procedure. 6 months after the discontinuance of the such treatment, the appropriate rating shall be determined by VA examination. If there is no local recurrence or metastasis, rate on residuals. Diagnostic Code 6602 is for bronchial asthma, a 30 percent rating is assigned for FEV-1 of 56-to-70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalation or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. 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; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. The Board acknowledges that, initially, the Veteran's disability was rated under Diagnostic Code 6844 which pertains to post-surgical residual (lobectomy, pneumonectomy, etc.) based on the General Rating Formula for Restrictive Lung Disease. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under the General Rating Formula for Restrictive Lung Disease, a 10 percent rating is warranted for forced expiratory volume in one second (FEV-1) of 71- to 80-percent predicted, or; the ratio of (FEV- 1) to forced vital capacity (FEV-1/FVC) of 71 to 80 percent, or; diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) 66- to 80-percent predicted. A 30 percent evaluation 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 evaluation 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 cardio respiratory limit). A 100 percent evaluation 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. 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 pulmonary function tests (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 reflects 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). The Veteran was afforded a VA respiratory examination in October 2019. The Veteran reported shortness of breath that worsens with activities and daily treatment with albuterol, Spiriva, and Symbicort inhalers. The Veteran denied systemic treatment and emergency room visits or hospitalization for respiratory complaints. The examiner noted that the Veteran's respiratory condition does not require the use of oral or parental corticosteroid medications. The Veteran's respiratory condition did require the use of daily inhaled medications, including inhalational bronchodilator therapy and inhalational anti-inflammatory medication. The examiner noted the Veteran's respiratory condition did not require the use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. Pulmonary function testing revealed the following spirometry and lung function values: (pre-bronchodilator) FVC 78.8 percent predicted; FEV-1 60.3 percent predicted; FEV-1/FVC 58 percent; DLCO 37.7 percent predicted; (post-bronchodilator) FVC 81.3 percent predicted; FEV-1 66.7 percent predicted; and FEV-1/FVC 63 percent. The examiner indicated that FEV-1 most accurately reflected the Veteran's level of disability. An exercise capacity test was not performed. The examiner noted that the Veteran had been diagnosed with lung cancer in 2014, but after a right upper lobectomy in 2014 and antineoplastic chemotherapy it was in remission. The examiner stated that the Veteran's respiratory condition impacted his ability to work because the Veteran could not perform strenuous physical activities. As for scars, on October 2019 examination, a scar on the upper right chest measuring 10 centimeters (cm) by 1 cm was noted. The examiner found that the scar was not painful or unstable and did not cover a total area equal to or greater than 39 square cm (6 square inches). VA records contain follow-up pulmonary visits. In October 2019 pulmonary consultation records note that the Veteran tolerated albuterol treatment well with no adverse side effects. May 2020 VA pulmonary records state that the Veteran's status is stable wit no exacerbations or wheezing. The Veteran reported that he plays golf and will use his albuterol for relief. Having carefully considered the Veteran's contentions in light of the evidence recorded and the applicable law, the Board finds that the criteria for an evaluation in excess of 30 percent were not met at any point during the period on appeal. The Veteran is currently rated at 30 percent under 6602 because the Veteran uses daily inhalational and oral bronchodilator therapy. Under Diagnostic Code 6602, 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; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Here, the Veteran's FEV-1 has been measured, at worst 66.7 percent predicted as reported by the October 2019 VA examiner. Further, the Veteran's condition is not treated with monthly visit for exacerbations or intermittent courses of systemic corticosteroids. As stated in VA treatment records, the Veteran has tolerated albuterol treatment well, and has no complaints of exacerbations. Based on the foregoing, a higher rating is not warranted under Diagnostic Code 6602. Diagnostic Code 6844 based on the General Rating Formula for Restrictive Lung Disease also does not afford the Veteran a rating in excess of 30 percent. In this regard to warrant a 60 percent rating, the evidence would have to show 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 cardio respiratory limit). Although an exercise capacity test was not performed during the October 2019 VA examination, the VA examiner opined that the FEV-1 most accurately reflected the Veteran's level of disability. As such, the Board finds the October 2019 VA examiner's determination to be the most probative opinion of record regarding this finding. The examiner reviewed the Veteran's medical treatment records and PFT results. There is no medical opinion contrary on the matter. As discussed above, the Veteran's FEV-1 has been measured, at worst 66.7 percent predicted as reported by the October 2019 VA examiner. The weight of the evidence does not show that the Veteran demonstrated a ration of FEV-1 of 40 to 55 predicted, or poorer, at any time during the period on appeal. Accordingly, a higher rating is not warranted for the Veteran's service-connected status post right upper lobectomy. The Veteran's scar, right upper chest, is evaluated as noncompensable (0 percent), effective April 24, 2014, under Diagnostic Code 7805, which provides other scars (including linear scars) and other effects of scars evaluated under Diagnostic Code 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118. The Veteran's scar is not of the head, face, or neck, meaning Diagnostic Code 7800 is inapplicable. 38 C.F.R. § 4.118. Additionally, the scar is not deep and nonlinear, making Diagnostic Code 7801 inapplicable. As the total area of the scar is less than 929 square centimeters, Diagnostic Code 7802 is inapplicable. Id. Diagnostic Code 7804 sets forth the disability ratings of: 30 percent for five or more scars that are unstable or painful; 20 percent for three to four scars that are unstable or painful; or 10 percent for one or two scars that are unstable or painful. An "unstable" scar is a scar "where, for any reason, there is frequent loss of covering of skin over the scar." Id. at Diagnostic Code 7804, Note (1). Diagnostic Code 7805 provides that scars (including linear scars) not otherwise rated under Diagnostic Codes 7800 to 7804 are to be rated based on any disabling effects not provided for by those codes. In addition, the effects of scars otherwise rated under Diagnostic Codes 7800 to 7804 are to be considered. 38 C.F.R. § 4.118, Diagnostic Code 7805. Based on the above, a compensable evaluation for right upper chest scar is not warranted because there is no evidence of painful or unstable scars or disabling effects. On October 2019 examination, a scar on the upper right chest measuring 10 centimeters (cm) by 1 cm was noted. The examiner found that the scar was not painful or unstable and did not cover a total area equal to or greater than 39 square cm (6 square inches). The Board has considered the applicability of staged rating. However, at no time during the period in question has the disability warranted a higher rating than that assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For these reasons, the preponderance of the evidence is against the Veteran's claims for increased ratings, and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to a TDIU on a schedular basis prior to October 17, 2014 The law provides that a total disability rating may be assigned where the schedular rating is less than total, when a veteran is unable to secure or maintain a substantially gainful occupation as a result of service-connected disabilities, provided that: if there is only one such disability, the disability shall be ratable at 60 percent or more; or, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). A claim of entitlement to a TDIU is essentially a claim for an increased rating, and therefore, the effective date of an award of such a claim is the earliest date on which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, the effective date of the award is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o). The Veteran seeks an effective date earlier than October 17, 2014 for the award of TDIU. The Veteran explains that he retired from his job on Friday, February 28, 2014, because he had right upper lobectomy surgery on March 3, 2014. The Veteran first satisfied the schedular requirements of a TDIU as of October 17, 2014. The Veteran is currently service connected for bilateral hearing loss, rated as 10 percent disabling from September 22, 2011, 70 percent disabling from October 17, 2014; posttraumatic stress disorder, rated as 50 percent disabling from May 20, 2019; status post right upper lobectomy (previously rated as adenocarcinoma right lung, status post right upper lobe lobectomy with scar), rated as 100 percent disabling from April 24, 2014 (a total temporary rating for convalescence after a right upper lobectomy), 30 percent disabling from September 1, 2016; tinnitus, rated at 10 percent from September 22, 2011; and scar, right upper chest associated with status post right upper lobectomy (previously rated as adenocarcinoma right lung, status post right upper lobe, lobectomy with scar). Prior to October 17, 2014, the Veteran's combined evaluation was 20 percent. At that time, he was granted service connection for bilateral hearing loss, rated 10 percent disabling; and tinnitus, rated 10 percent disabling not including his temporary convalescent period from April 2014 for his service-connected status post right upper lobectomy. As such, prior to October 17, 2014, the Veteran did not meet the schedular requirements for a TDIU. After careful consideration of the evidence of record, the Board finds that entitlement to a schedular TDIU rating arose on October 17, 2014. The Board therefore finds that regardless of the date that a claim for TDIU was filed, the Veteran was not entitled to a TDIU rating on a schedular basis prior to October 17, 2014. As a result, an earlier effective date for an award of TDIU on a schedular basis must be denied. REASONS FOR REMAND Entitlement to a TDIU on an extraschedular basis, prior to October 17, 2014, is remanded. Although the Veteran does not meet the rating requirements for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16(a) prior to October 17, 2014, a TDIU may be granted alternatively on an extraschedular basis under 38 C.F.R. § 4.16(b) if it is established that the Veteran in indeed unemployable on account of his service-connected disabilities. The Board is precluded from granting a TDIU on an extraschedular basis in the first instance, and must refer the matter to the Director, Compensation Service for the initial adjudication. See 38 C.F.R. § 4.16(b); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director, Compensation Service or designee determines that an extraschedular TDIU is not warranted does the Board then have jurisdiction to decide the issue on its merits. Concerning whether the Veteran's claim should be referred to extraschedular consideration, the record suggests that the Veteran has not been able to work since February 28, 2014. The Board notes that the Veteran was assigned a temporary 100 percent evaluation for convalescence after his right upper lobectomy from April 24, 2014, the date on which VA received the Veteran's claim for status post right upper lobectomy. Therefore, the Veteran's TDIU claim should be submitted to the Director, Compensation Service for an initial determination of whether TDIU is warranted on an extraschedular basis prior to October 17, 2014. See Barringer v. Peake, 22 Vet. App. 242 (2008) (holding that the Board must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record). The matters are REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU prior to October 17, 2014 to the Director of Compensation and Pension Services for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b). 2. Readjudicate the issue remaining on appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case. After the Veteran and his representative have had adequate opportunity to respond, return the appeal to the Board. Amanda Baker Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.