Citation Nr: 21042486 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-57 081 DATE: July 13, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for a pulmonary nodule is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), from October 3, 2017, is granted. REMANDED Entitlement to a compensable disability rating for pseudofolliculitis barbae (PFB), prior to December 3, 2019; and a disability rating in excess of 10 percent, thereafter, is remanded. Entitlement to a TDIU prior to October 3, 2017 is remanded. FINDINGS OF FACT 1. Pulmonary function tests (PFTs) using the Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) and Forced Vital Capacity (FVC) most accurately reflect the level of the Veteran's disability. The Veteran's pulmonary nodule manifested by post-bronchodilator Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) greater than 80 percent and Forced Vital Capacity (FVC) greater than 90 percent. 2. Resolving reasonable doubt in the Veteran's favor, from October 3, 2017, the evidence of record is in relative equipoise as to whether the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for a pulmonary nodule are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.159, 4.3, 4.97, Diagnostic Code 6845. 2. The criteria for TDIU from October 3, 2017 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16(a)(2), 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to September 1987. This appeal is before the Board of Veterans' Appeals (Board) from multiple rating decisions from a Department of Veterans Affairs (VA) Regional Office. In a November 2013 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran service connection for his pulmonary nodule with a 10 percent disability rating effective March 6, 2012. Further development followed, including the Veteran filing claims of entitlement to TDIU and service connection for PFB, and in a September 2014 rating decision, the AOJ reduced his pulmonary nodule rating to noncompensable, denied his TDIU claim, and awarded service connection and a noncompensable rating for his PFB effective January 17, 2014. In a December 2018 Board Decision, his pulmonary rating of 10 percent was restored and his claims of TDIU and an increased rating for PFB were remanded. Subsequently, in a July 2020 rating decision, the Veteran was granted a 10 percent rating for his PFB effective December 3, 2019. The Veteran's claims have since returned to the Board and, for the reasons described herein, the Board finds substantial compliance with the remand directives related to entitlement to a higher rating for a pulmonary nodule. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Rating in Excess of 10 Percent for Pulmonary Nodule The Veteran's pulmonary nodule is currently rated as 10 percent disabling under Diagnostic Code 6845. 38 C.F.R. § 4.97. Under the General Rating Formula for Restrictive Lung Disease (Diagnostic Codes 6840-6845), a 10 percent rating is assigned with Forced Expiratory Volume at one second (FEV-1) of 71 to 80 percent predicted, FEV-1/FVC of 71 to 80 percent predicted, or DLCO (SB) of 66 to 80 percent predicted. A higher 30 percent rating is assigned with FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent predicted, or DLCO (SB) of 56 to 65 percent predicted. A 60 percent rating is assignable with FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 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 cardiac or respiratory limitation). A 100 percent rating is assigned with FEV-1 less than 40 percent of predicted value, FEV-1/FVC less than 40 percent, 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; disability that requires outpatient oxygen therapy. 38 C.F.R. § 4.97. Per 38 C.F.R. § 4.96(d)(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 which case, the evaluator should use the pre-bronchodilator values for rating purposes. When there is a disparity between the results of different PFTs FEV-1 and FVC, so that the level of evaluation would be different depending on which test result is used, the test result is used that the examiner states most accurately reflects the level of disability. See 38 C.F.R. § 4.96(d)(6). Turning to the evidence of record, In October 2013, the Veteran underwent a VA respiratory conditions examination report, which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. None of the post-bronchodilator results were worse than the pre-bronchodilator results; thus, only use post-bronchodilator will be recited (See 38 C.F.R. § 4.96(d)(5)). The report determined his FVC was 5.04 percent, FEV-1 was 3.98 percent, FEV-1/FVC was 79 percent, and his DLC was 18 percent. In May 2014 he underwent a VA respiratory conditions examination report, which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. His FVC results post-bronchodilator were 88 percent; his FEV-1 results post-bronchodilator were 100 percent; his FEV-1/FVC results were the same pre-and-post bronchodilator and were 82 percent; and his DLCO results were only given pre-bronchodilator and were 64 percent. The report determined his DEV-1/FVC results was the result that "most accurately reflects" the level of his disability. In December 2018, the Board remanded the Veteran's claim for further development to include a new VA examination to determine the severity of the manifestations of his pulmonary nodule. In December 2019 he underwent a VA respiratory conditions examination report, which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. As to his FVC, his results pre-and-post bronchodilator were the same at 93 percent; FEV-1 results post-bronchodilator at 108 percent; his FEV-1/FVC results post-bronchodilator were at 81 percent; and only his pre-bronchodilator DLCO results were given at 78 percent. The report determined his FVC results was the result that "most accurately reflects" the level of his disability; however, no explanation as to why was provided. In the remarks section the examiner wrote: The service-connected Pulmonary Nodule does not affect lung function in general... The Veteran's diagnosis is updated to bilateral pulmonary nodule, for more accuracy. The Veteran has new diagnoses of Hyperinflation, and pleural and parenchymal scarring, with no diagnosed association between these diagnoses and the earlier pulmonary nodules. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran's pulmonary nodule warrants a disability rating in excess of 10 percent throughout the entire period on appeal. A higher 30 percent rating is assigned with FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent predicted, or DLCO (SB) of 56 to 65 percent predicted. Here, the May 2014 VA examiner determined the FEV-1/FVC result most accurately reflected the Veteran's level of disability and that was 82 percent. Moreover, although the Veteran's DLCO result was 64 percent, the regulations require the Board to assign the rating based on the test result that the examiner states most accurately reflects the level of disability. See 38 C.F.R. § 4.96(d)(6). Thus, the Veteran's DLCO result is not eligible for the Board to utilize in the rating criteria. Additionally, in December 2019 the VA examiner determined the FVC result most accurately reflected the Veteran's level of disability and that was 93 percent. Moreover, although the examiner did not explain how the test that most accurately reflects his disability has changed since May 2014, the Board notes his FEV-1 and FEV-1/FVC results were not high enough to warrant a higher or separate rating. Specifically, this is because the Board must use the post-bronchodilator results unless they are worse than the pre-bronchodilator results and in the December 2019 VA examination, none of his post-bronchodilator results were worse. See 38 C.F.R. § 4.96(d)(5). Furthermore, the evidence of record is devoid of any competent or credible medical evidence that indicates the Veteran's pulmonary nodule warrants a disability rating in excess of 10 percent. The Board has considered whether any other Diagnostic Codes related to disabilities of the respiratory system would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.97. In conclusion, the preponderance of the evidence is against finding the Veteran's pulmonary nodule warrants a disability rating in excess of 10 percent. To the extent that any higher or separate level of compensation is sought, the preponderance of the evidence is against the claim and the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran's claim a disability rating in excess of 10 percent for his pulmonary nodule is denied. 2. TDIU from October 3, 2017 TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: if the veteran has only one such disability, the disability must be rated at 60 percent or more, or, if the veteran has two or more disabilities, at least one disability is rated at 40 percent or more and additional disabilities bring the veteran's combined disability rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose, disabilities affecting a single system, e.g., nervous, will be considered a single disability. 38 C.F.R. § 4.16(a). Where the schedular rating is less than total, a total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability shall be ratable at 60 percent or more. If there are two or more disabilities, then there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. VA will grant a TDIU when the evidence shows that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As to his service-connected disabilities, as of October 3, 2017, the Veteran's total disability rating increased to 70 percent. Specifically, he was rated for: (1) flat feet, rated at 30 percent disabling; (2) lumbar spinal stenosis, rated at 20 percent disabling; (3) right lower extremity sciatic nerve radiculopathy, rated at 10 percent disabling; (4) left lower extremity sciatic nerve radiculopathy, rated at 20 percent disabling; (5) pulmonary nodule, rated as 10 percent disabling; and (6) noncompensable pseudofolliculitis barbae. Moreover, as previously stated, disabilities resulting from a common etiology can be rated as a single disability. See 38 C.F.R. § 4.16(a). Here, the Veteran's lumbar spinal stenosis and right and left lower extremity radiculopathy associated with his lumbar spinal stenosis all result from the same etiology and can be rated as a single disability at 40 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Thus, the Veteran meets the schedular criteria for TDIU as of October 3, 2017 since he had a total disability rating of 70 percent and one disability rated at 40 percent. See 38 C.F.R. § 4.16(a)(2). As to when the Veteran's service-connected disabilities prevented him from obtaining or maintaining a substantially gainful occupation, in September 2012 the Social Security Administration determined he was disabled and unable to work as of September 27, 2012 due to "disorders of the back and osteoarthritis and allied disorders." Moreover, in the Veteran's August 2014 VA Form 21-8940 Application for TDIU he stated he last worked on February 7, 2012 but was last employed as of August 9, 2012. The Board notes that the SSA findings, however, are dispositive on this issue. Rather, the question of whether the Veteran's service-connected disabilities render him unemployable is a legal determination to be made by the Board. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Entitlement to TDIU is based on an individual's particular circumstance. Rice, 22 Vet. App. at 452. Moreover, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. See Geib, 733 F.3d at 1354. The Board concludes that a TDIU is warranted from October 3, 2017 from the date that he met the schedular criteria for TDIU. The Board finds probative that SSA concluded that the Veteran was unemployable, in part, due to his low back disability. The Board notes that the Veteran's low back disability and sciatic nerve impairment limits the Veteran's ability capacity for lifting or twisting motions, and limits his tolerance for prolonged walking, standing or driving. Left leg weakness also limits capacity for climbing or carrying heavy items. These restrictions caused the Veteran to be unable to perform his prior employment as production operator and crude shed loader for a mine. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability received October 2014. Additionally, the Veteran's high school education, his use of a cane for mobilization, and limitations due to episodes of severe intermittent pain of his left leg would impacts the Veteran's ability to perform a desk job. Thus, the Board finds that the evidence is at least evenly balanced as to whether his service-connected disabilities render him unable to obtain and maintain substantially gainful employment as of October 3, 2017. See Geib, 733 F.3d at 1354. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU from October 3, 2017, forward, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Pseudofolliculitis Barbae The Veteran's claim for a higher initial rating for PFB was remanded for a new examination in December 2018. A new VA examination was afforded in December 2019. Unfortunately, the Board finds that the results of the December 2019 examination are internally inconsistent, and a new VA examination must be afforded prior to adjudication of the issue by the Board. Specifically, the December 2019 examiner indicates of the hyperpigmentation of the head, face, or neck, but reports that the total area of hypo or hyperpigmentation is 0 cms. The examiner also indicates that the approximate total area of head, face and neck with abnormal texture is 187 cm. but does not describe the abnormal texture of this area. It is unclear how many characteristics of disfigurement the Veteran's condition meets. As such, the Board finds that a new VA examination should be afforded to determine the extent and severity of the Veteran's condition. TDIU Prior to October 3, 2017 The Board finds that the claim for a TDIU prior to October 3, 2017 rating is inextricably intertwined with the claim for a higher initial rating for PFB being remanded because the evidence received in connection with, and the determinations on, the other claims could materially affect the outcome of the TDIU rating claim. See 38 C.F.R. § 4.16; see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, the Veteran's claim for a TDIU prior to October 3, 2017 must also be remanded. This matter is remanded for the following actions: 1. Provide the Veteran with a VA examination to assess the severity of his service-connected pseudofolliculitis barbae. If possible, the examination should be scheduled during an active phase of his pseudofolliculitis barbae. To the extent possible, scheduling of the examination should be made in consultation with the Veteran as to when his disorder is active. All appropriate testing should be performed, and all findings reported in detail. The entire record must be made available to the examiner in conjunction with the examination. The examiner must include appropriate and separate clinical findings to include the percentage of exposed area and percentage of entire body affected by the skin disorder; the type of therapy used for the skin disorder; the nature and size of any associated scarring, to include whether such scars are painful or unstable, superficial or nonlinear, and their size. The examiner should also report whether the Veteran's PFB causes any of the characteristics of disfigurement including: (1) scar 5 or more inches in length; (2) scar at least one-quarter inch wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding six square inches; (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches; (7) underlying soft tissue missing in an area exceeding six square inches; or (8) skin indurated and inflexible in an area exceeding six square inches. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.