Citation Nr: 21042784 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 19-32 600 DATE: July 13, 2021 ORDER The claim for a disability rating in excess of 30 percent for carcinoma of the lung with post-operative right upper lobectomy and chronic obstructive pulmonary disease (COPD) is denied. FINDING OF FACT The Veteran's service-connected lung disability was not manifested by FEV-1 or FEV-1/FVC readings of 55 percent or less of predicted value; or DLCO (SB) less than 55 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation). CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for the service-connected carcinoma of the lung with post-operative right upper lobectomy and COPD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.96, 4.97, Diagnostic Codes 6819-6844. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from April 1958 to June 1981. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2020. A transcript of the hearing has been obtained and associated with the claims file. This appeal was previously remanded in November 2020 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran is seeking a rating in excess of 30 percent for his service-connected carcinoma of the lung and post-operative right upper lobectomy and COPD. At the September 2020 Board hearing, the Veteran testified his condition had worsened since the September 2019 VA examination. He stated he was "struggling daily, with breathing." He also stated that the upper right lobectomy for his lung cancer left him "not able to breath properly." Here, the Veteran's service-connected lung disability has been evaluated as 30 percent disabling under Diagnostic Codes 6819-6844. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Code 6819 governs malignant neoplasms of any specified part of the respiratory system. Under Diagnostic Code 6819, a 100 percent rating continues beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after the discontinuance of such treatment, the appropriate disability rating is determined by mandatory VA examination. If there has been no local recurrence or metastasis, the rating is based on residuals. 38 C.F.R. § 4.97, Diagnostic Code 6819. Diagnostic Code 6844 provides that post-surgical residuals of lobectomy will be rated under the general rating formula for restrictive lung diseases. Pursuant to this Diagnostic Code, a 10 percent rating is assigned for Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, 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 Single Breath Method (DLCO (SB)) is 66- to 80-percent predicted. A 30 percent disability rating is assigned 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 disability rating is assigned 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 disability rating for findings that show 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. The Board recognizes the Veteran's contention that his COPD should be separately rated from his service-connected carcinoma of the lung and that a VA December 2020 opinion concluded that the Veteran's COPD and carcinoma of the lung resection were separate and distinct. However, 38 C.F.R. § 4.96, shows that they cannot be rated separately. Under 38 C.F.R. § 4.96 (a), which discusses special provisions regarding evaluation of respiratory conditions, ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Instead, "a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation." Id. COPD is rated under Diagnostic Code 6604 and the Veteran's carcinoma of the lung is rated under Diagnostic Code 6844 [post-surgical residual (lobectomy, pneumonectomy, etc.)]; accordingly, they were assigned a single rating under the same code based on the predominant disability. See id. Pulmonary Function Tests (PFTs) are required to evaluate these conditions. 38 C.F.R. § 4.96 (1). Post-bronchodilator studies are required when PFT's 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 (4). When evaluating based on PFT's, 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. 38 C.F.R. § 4.96 (5). Turning to the evidence of record, November 2017 and March 2018 VA Respiratory Conditions VA examinations were conducted without PFTs. Both VA examinations noted that the Veteran did not require outpatient oxygen therapy for his respiratory condition. According to a July 2019 Respiratory Conditions VA examination, PFTs revealed that the Veteran's FEV-1 was 54 percent, FEV-1/FVC was 68 percent, and DLCO was 64 percent predicted. The examiner indicated that the FEV-1/FVC most accurately reflected the Veteran's level of disability. Spirometry and lung value showed mixed obstructive and restrictive defect and there was no significant response to bronchodilators (it was noted however, that this did not preclude a clinical response." The DLCO demonstrated a mild diffusion limitation. Following the Veteran's testimony that his lung conditions were worsening, he was provided with a second VA examination in December 2020. The examination report noted that the July 2019 FEV-1 test result of 64 percent predicted most accurately reflected the Veteran's level of disability. The Veteran did not require outpatient oxygen therapy for his respiratory condition. PFT results from May 2021 indicated that the Veteran's FEV-1 was 66 percent and FEV-1/FVC was 93 percent. The VA examiner noted that the FEV-1/FVC test result most accurately reflected the Veteran's level of disability. Having reviewed the relevant evidence and regulations, the Board has determined that the Veteran's lung disability does not warrant a rating in excess of 30 percent at any time during the pendency of the appeal. With the exception of the July 2019 FEV-1 test result, at no time was the FEV-1/FVC, or DLCO measurement less than 55 percent. While the FEV-1 was 54 percent at the July 2019 PFTs, the FEV-1/FVC was 68 percent, and DLCO was 63 percent predicted at this examination and the FEV-1 in May 2021 was 66 percent predicted, which is consistent with no more than a 30 percent rating. Furthermore, the FEV-1/FVC test result in May 2021 was 93 percent, which does not meet a compensable disability rating. The Board acknowledges that the PFT results appear to support varying disability ratings, however, the majority of the PFT results are consistent with the currently assigned 30 percent rating currently assigned. There is also no evidence that the Veteran has required outpatient oxygen therapy for his respiratory condition. VA treatment records were reviewed, basic training did not show any additional pulmonary function testing beyond the VA examinations. For the reasons stated, a rating in excess of 30 percent is not warranted at any time. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.