Citation Nr: 22014776 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 19-00 089 DATE: March 15, 2022 ORDER Entitlement to an initial rating of 30 percent, but no higher, prior to August 16, 2021, for lung cancer status post right upper lobectomy, also referred to as lung disability, is granted. FINDING OF FACT In applying the benefit of the doubt, the Veteran's lung disability manifested to moderate symptoms, with FEV-1 percentage of 55 percent, and FEV-1/FVC percentage of 71 percent. CONCLUSION OF LAW The criteria for an initial rating of 30 percent, but no higher, for lung cancer status post right upper lobectomy, also referred to as lung disability, prior to August 16, 2021, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97 Diagnostic Code (DC) 6844. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from June 1960 to April 1964. A June 2019 Board decision denied the Veteran's claim for increased rating. The Veteran appealed this decision, and, pursuant to an October 2020 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's June 2019 decision and remanded the matter to the Board for further development. The Court found that the Board did not provide adequate Reasons and Bases. Specifically, the Court found that the Board did not adequately explain why it relied on the March 2019 examination, as the examiner did not provide a reason for not performing a Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO) test. The Court also found the examiner did not explain why results from one form of testing, the Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC), was more accurate than the others. The case was then brought before the Board in June 2021 and was remanded for further development. The Board notes that on remand the Veteran was granted a 100 percent rating from August 16, 2021, which is a full grant of benefits and therefore, the Board will only be considering the period on appeal prior to August 16, 2021. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an increased Rating: Lung Disability The Veteran's lung disability is currently rated as 10 percent disabling prior to August 16, 2021, under Diagnostic Code (DC) 6844 for post-surgical residuals, which is rated under the General Rating Formula for Restrictive Lung Disease. The general rating formula provides a 10 percent rating when pulmonary function testing (PFT) shows a FEV-1 that is 71 to 80 percent predicted, or FEV-1/FVC that is 71 to 80 percent, or when the DLCO is 66 to 80 percent predicted. A 30 percent rating is assigned when FEV-1 is 56 to 70 percent predicted, or FEV-1/FVC is 56 to 70 percent, or the DLCO is 56 to 65 percent predicted. See 38 C.F.R. § 4.97, DC 6844. A 60 percent rating is assigned where FEV-1 is 40 to 55 percent predicted, or FEV-1/FVC is 40 to 55 percent, or DLCO is 40 to 55 percent predicted, or when maximum oxygen consumption is 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is assigned when FEV-1 is less than 40 percent predicted, or FEV-1/FVC is less than 40 percent, or when DLCO is less than 40 percent predicted, or when maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or there is cor pulmonale, or, right ventricular hypertrophy, or, there is pulmonary hypertension as shown by echocardiogram or cardiac catheterization, or where there are episodes of acute respiratory failure, or where outpatient oxygen therapy is required. Id. If a DLCO test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in the particular case. 38 C.F.R. § 4.96 (d)(2). Post-bronchodilator studies are required when PFTs are conducted for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that the post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96 (d)(4). When both pre- and post-bronchodilator results are available, the post-bronchodilator results should be applied to the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96 (d)(5). In August 2018, the Veteran attended a VA examination. The Veteran was diagnosed with malignant tumors/neoplasms and right lobectomy in remission. The Veteran's condition did not require use of oral or parenteral corticosteroid medications, inhaled medications, or oral bronchodilators. The Veteran did not require outpatient oxygen therapy. The Veteran did have shortness of breath. Chest x-ray showed the Veteran had right sided scarring with decreased volume. The examiner noted PFT testing was not performed due to the Veteran declining the testing. The Veteran attended another VA examination in March 2019. The Veteran reported dyspnea with walking more than 10 minutes on a level surface and when climbing one flight of stairs. He denied any chest pain, recurring infections, fevers, or requirement for supplemental oxygen. The Veteran did not require use of oral or parenteral corticosteroid medications, inhaled medications, or oral bronchodilators. He also did not require oxygen therapy and no other conditions were noted. PFT was performed and reflected his current pulmonary function. Post bronchodilator, the Veteran's FVC was 56 percent, FEV-1 was 55 percent, and FEV-1/FVC was 71 percent. The examiner noted the FEV-1/FVC was most accurate. The examiner found DLCO testing was not indicated in this case. The examiner noted the Veteran's condition limited his capacity to perform duties requiring physical exertion. The examiner stated that the PFT showed moderate restriction with mild to moderate reversible obstruction. In July 2021, the Veteran received a VA examination phone interview. The Veteran reported his condition has stayed the same. He reported dyspnea with exertion and shortness of breath. The Veteran did not require use of oral or parenteral corticosteroid medications, inhaled medications, or oral bronchodilators. He also did not require oxygen therapy. The Veteran had difficulty with prolonged ambulation, standing, stairs, lifting or carrying objects, and performing arduous physical activities and exercises. After review of the evidence of record, the Board finds that a rating of 30 percent, but no higher, is warranted prior to August 16, 2021. In the Veteran's March 2019 examination, the examiner noted the Veteran had moderate restriction with mild to moderate reversible obstruction. While the examiner provided that the FEV-1/FVC results were most accurate, the Board notes that the examiner did not provide a reasoning. Further, the Veteran's FVC was 56 percent and his FEV-1 was 55 percent. Thus, the Board finds that a 30 percent rating more closely represents the overall severity of the Veteran's condition. However, the Board finds that a rating in excess of 30 percent is not warranted. While the Board acknowledges that the Veteran's FEV-1 was 55 percent, the Veteran's FEV-1/FVC was 71 percent, which would provide for only a 10 percent rating. Further, the Veteran's condition was never noted to be severe or even moderate to severe, and the Veteran did not require any medications, oxygen therapy, nor was he found to have cor pulmonale, right ventricular hypertrophy, or, pulmonary hypertension during this period, to include by his own report during his July 2021 phone interview. The Veteran additionally only reported dyspnea and shortness of breath with exertion during this period. Therefore, with having balanced and considered both his FEV-1 and FEV-1/FVC percentages, the Board finds that a 30 percent rating more closely approximates the Veteran's disability for the period under consideration, and a rating of 60 or 100 percent is not warranted. The Board acknowledges that the March 2019 examiner did not perform DLCO testing. However, the Board notes that the medical evidence of record is limited during this period, and the March 2019 examination is the only evidence of record showing any PFT results for the period on appeal. Thus, the Board, in applying the benefit of the doubt, has considered the March 2019 examination results for the entire period, with consideration of all testing percentages and statements. Accordingly, the Board concludes that a rating of 30 percent, but no higher, prior to August 16, 2021, for the Veteran's lung disability is warranted. The benefit of the doubt doctrine has been applied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.