Citation Nr: 22017725 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 15-40 470 DATE: March 26, 2022 ORDER Entitlement to a disability rating in excess 10 percent prior to October 10, 2016, in excess 20 percent prior to February 3, 2020, and in excess 30 percent from February 3, 2020, and thereafter for a lung disability is denied. FINDING OF FACT 1. Prior to October 10, 2016, the Veterans lung disability was manifested by FEV-1 72 percent predicted, satisfying the criteria for a 10 percent rating but no higher. 2. Prior to February 3, 2020, the Veterans lung disability was manifested by moderately severe injury of Muscle Group XXI. 3. From February 3, 2020, the Veterans lung disability was manifested by FVC 62 percent predicted and FEV-1 65 percent predicted; FEV-1 as low as or even near 40 to 55 percent of predicted value, a FEV-1/FVC of 40 to 55 percent, or a DLCO of 40 to 55 percent was not shown. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess 10 percent prior to October 10, 2016, in excess 20 percent prior to February 3, 2020, and in excess 30 percent from February 3, 2020, and thereafter for a lung disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.97, Diagnostic Codes (DC) 6844, 5321. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Army from April 1989 to February 1990. This matter was previously remanded by the Board in March 2019 for additional development, including a VA examination. As there has been substantial compliance with prior remand directives, this matter is properly before the Board for adjudication. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and 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). Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a disability rating in excess 10 percent prior to October 10, 2016, in excess 20 percent prior to February 3, 2020, and in excess 30 percent from February 3, 2020, and thereafter for a lung disability Prior to October 10, 2016 The Veteran's disability is rated under the General Rating Formula for Restrictive Lung Disease, Diagnostic Code 6844. There are special provisions for the application of the rating criteria for certain diagnostic codes, including Diagnostic Code 6844. The general rating formula provides a 10 percent rating when pulmonary function testing (PFT) shows a forced expiratory volume in one second (FEV-1) that is 71 to 80 percent predicted, or forced expiratory volume/forced vital capacity ration (FEV-1/FVC) that is 71 to 80 percent predicted, or when the diffusion capacity of carbon monoxide (DCLO) is 66 to 80 percent predicted. A 30 percent rating is warranted when FEV-1 is 56 to 70 percent predicted, or FEV-1/FVC is 56 to 70 percent predicted, or when the DCLO is 56 to 65 percent predicted. A 60 percent rating is warranted when 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 warranted when FEV-1 is less than 40 percent predicted, or FEV-1/FVC is less than 40 percent, or when DCLO 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 when there is cor pulmonale, or, right ventricular hypertrophy, or there is pulmonary hypertension as shown by echocardiograph or cardiac catherization, or when there are episodes of acute respiratory failure, or where outpatient oxygen therapy is required. 38 C.F.R. § 4.97, DC 6844. 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 post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96 (d)(4)(2017). 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 a November 2012 VA examination, the Veteran reported that she stopped working due to left empyema and developed chronic pain syndrome due to empyema and chest tube placement. It does not appear pulmonary function test were performed with FVC, FEV-1, FEV-1/FVC, or DLCO results. A March 2013 examination showed post bronchodilator FVC 72 percent predicted, FEV-1 72 percent predicted, and a FEV-1/FVC ratio 103 percent predicted. The DLCO was 134 percent predicted. An October 27, 2014, VA examination, the Veteran reported that her respiratory status is worse as she developed a chronic cough, which is now greatly improved since her primary care provider prescribed a PCP daily benzonatate cough suppressant. The Veteran denied wheezing. The examiner noted that that the Veteran does not use an inhaler and does not require use of oral or inhaled medication. The examiner concluded that the Veteran had mild restrictive pulmonary deficit. Further, the examiner noted that the Veterans last set of PFTs in March 2013, well reflect her current status with no need to repeat currently. Based on the foregoing medical evidence and the Veteran's statements, the Board finds that an increased evaluation for service- connected lung disability is not warranted. Based on the pulmonary function test, the Veteran did not have a FEV-1 as low as 56 to 70 percent of predicted value, or a FEV- 1/FVC of 56 to 70 percent. Finally, the DLCO was 134 percent. The Veteran does credibly state that her pulmonary status is worse. Nevertheless, the rating, as noted, depends on the results of the pulmonary function tests. The evidence does not show any result warranting an increase to the next higher rating of thirty percent. There also is no evidence that the Veteran has maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by echo or cardiac catheterization), episodes of acute respiratory failure, or requires outpatient oxygen therapy. Accordingly, the Board concludes the Veteran does not meet the criteria for the next highest rating, 30 percent, prior to October 10, 2016. Prior to February 3, 2020 The Veteran was assigned a 20 percent disability rating for her lung disability based on minimum evaluation for gunshot wounds of the pleural cavity. The Board finds that a rating in excess of 20 percent is not warranted. The Veteran's service-connected residuals of retained foreign body in left lung currently are rated throughout the rating period as 20 percent disabling under Diagnostic Code 5321, based on evidence showing severe or moderately severe muscle injury. A 20 percent rating for moderately severe or severe injury to Muscle Group XXI (muscles of respiration) is the maximum rating under this diagnostic code. 38 C.F.R. § 4.73, Diagnostic Code 5321. Alternatively, Diagnostic Codes 6840 to 6845 pertaining to traumatic chest wall defect, pneumothorax, hernia, etc., are rated under a general rating formula for restrictive lung disease. A 30 percent rating is warranted if the following findings are demonstrated: a forced expiratory volume in one second (FEV-1) of 56 to 70 percent predicted, or; a force expiratory volume in one second to forced vital capacity ratio (FEV-1/forced ventilatory capacity (FVC)) of 56 to 70 percent, or; a diffusion capacity of carbon monoxide, single breath (DLCO (SB)) of 56 to 65 percent predicted. A 60 percent rating is warranted if the following findings are demonstrated: an FEV-1 of 40 to 55 percent predicted, or; a FEV-1/FVC of 40 to 55 percent, or; a DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). The maximum 100 percent rating is warranted if the following findings are demonstrated: an FEV-1 of less than 40 percent of predicted value or; a FEV-1/FVC of less than 40 percent, or; a DLCO (SB) of 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. See 38 C.F.R. § 4.97, Diagnostic Codes 6840 to 6845. Note (1) following revised Diagnostic Codes 6840 to 6845 provides for a 100 percent rating for pleurisy with emphysema, with or without pleurocutaneous fistula, until resolved. Note (2) states 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 3 months from the first day of the month after hospital discharge. Note (3) indicates that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion shall be rated at least 20 percent disabling. Disabling injuries of the shoulder girdles muscles (Groups I to IV) shall be separately rated and combined with ratings for respiratory involvement. Involvement of Muscle Group XXI (muscles of respiration, Diagnostic Code 5321), however, will not be separately rated. An October 2016 chest X-ray revealed a nodule in the left lung and a needle biopsy showed benign lesion but contamination of surgical wound resulted in empyema and pleuritis needing long chest tube placement, oral, and injectable steroids. Pulmonary function testing in October 2016, post-bronchodilator, revealed forced vital capacity (FVC) of 25 percent predicted, forced expiratory volume in one second (FEV-1) of 31 percent predicted, and an FEV-1/FVC ratio of 122 percent predicted. The examiner stated that the Veterans respiratory condition impacted her ability to work as deep breathing hurts and the steroids used to heal her lung resulted in bone pain in her right hip. Here, throughout the rating period, the evidence reveals moderately severe injury of Muscle Group XXI of the Veteran's thoracic spine. See 38 C.F.R. § 4.56. The Veteran has complained of difficulty in breathing as chest wall hurts on expansion. As noted above, the currently assigned 20 percent rating is the maximum allowable under 38 C.F.R. § 4.73, Diagnostic Code 5321. If a Veteran is in receipt of the maximum disability rating available under a diagnostic code for limitation of motion, consideration of functional loss due to pain is not required. Johnson v. Brown, 10 Vet. App. 80 (1997). Hence, an increased rating under Diagnostic Code 5321 is not warranted. In considering alternative criteria, a traumatic chest wall defect provides for at least a 20 percent rating for residuals of gunshot wounds of the pleural cavity with bullet or missile retained in lung. See 38 C.F.R. § 4.97, Diagnostic Codes 6840 to 6845, Note 3. However, results of pulmonary function testing in October 2016 do not meet criteria for an increased rating under the general rating formula for restrictive lung disease. Respiratory function impairment, either as a cause or permanent aggravation, due primarily to the retained shrapnel has not been demonstrated. At no time does evidence reflect that an intercostal muscle strain or muscle damage warrants a disability rating in excess of 20 percent. See Diagnostic Codes 6840-6845. Therefore, the weight of the evidence is against a disability rating greater than the currently assigned 20 percent rating under any diagnostic code for residuals of retained foreign body in left lung. From February 3, 2020, and thereafter Since February 3, 2020, the Veteran is currently assigned a 30 percent disability rating pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6844, for her lung disability. The PFT performed on February 3, 2020, showed post bronchodilator FVC of 62 percent predicted, FEV-1 of 65 percent predicted, and a FEV-1/FVC ratio of 81.83 percent predicted. The DLCO was 69 percent predicted. The VA examiner stated the FVC-1 result best indicated the Veteran's level of disability. The Veteran used an Inhalational bronchodilator therapy intermittently. She did not need any other type of medication such as corticosteroids Based on the pulmonary function tests, from February 3, 2020, to the present, the Veteran did not have a post-bronchodilator FEV-1 as low as or even near 40 to 55 percent of predicted value, a FEV-1/FVC of 40 to 55 percent, or a DLCO of 40 to 55 percent. On examination, the Veterans lungs were clear bilaterally and no wheezing or no crepitus was noted. There is no evidence the Veteran suffers from cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension demonstrated on an echo or cardiac catheterization, an episode of acute respiratory failure, or the Veteran requires outpatient oxygen therapy. Again, while the Veteran complains of symptoms that interfere with walking, her rating depends on the results of the pulmonary function tests. The evidence does not show any result warranting an increase to the next higher rating of sixty percent. Moreover, neither the VA examiners nor other medical professionals of record have indicated that the reported PFT results did not accurately represent the level of pulmonary impairment manifested by the Veteran's lung disability. The Board therefore finds that the PFT results documented in the record provide an appropriate basis for rating the Veteran's service-connected lung disability because they are an accurate representation of the Veteran's respiratory impairment. See 38 C.F.R. § 4.96 (d)(2). Accordingly, the Board concludes the Veteran does not meet the criteria for the next highest rating, 30 percent, at any time during the appeal period from February 3, 2020, to the present. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica