Citation Nr: 22028435
Decision Date: 05/13/22	Archive Date: 05/13/22

DOCKET NO. 17-64 625
DATE: May 13, 2022

ORDER

Entitlement to a rating in excess of 60 percent for residuals of a shell fragment wound to the right lung is denied.

FINDING OF FACT

The Veteran's residuals of a shell fragment wound to the right lung do not result in pulmonary function testing (PFT) showing of FEV-1 is less than 40 percent of predicted value; a ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung or Carbon Monoxide by the Single Breath Method (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. 

CONCLUSION OF LAW

The criteria for a rating in excess of 60 percent for residuals of a shell fragment wound to the right lung are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.97, Diagnostic Code (DC) 6845.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1967 to March 1969. 

This appeal to the Board of Veterans' Appeals (Board) is from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ).

This case was most recently before the Board in October 2020, at which time it was remanded for further development to have the Veteran reexamined to reassess the current severity of his residuals of shell fragment wound to the right lung. The remand instructions since have been completed as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Of note, in the April 2022 brief from the Veteran's representative, the representative requested an earlier effective date for the award of 60 percent for residuals of shell fragment wound to the right lung. This additional issue is not on appeal and must be separately appealed since a "downstream" issue following the granting of the higher 60 percent rating. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The record shows the Veteran has not filed a claim for an earlier effective date for 60 percent rating or separately appealed this downstream issue, so the Board is not assuming jurisdiction over this additional claim. He is free to pursue this other claim at the RO. Thus, this appeal will only concern, instead, the rating for his residuals of shell fragment wound to the right lung.

Entitlement to a rating in excess of 60 percent for residuals of a shell fragment wound to the right lung

The Veteran asserts that his residuals of a shell fragment wound to the right lung are more severe than contemplated by his current 60 percent rating. 

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, 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.

The Veteran's residuals of a shell fragment wound to the right lung are rated under DC 6845 for chronic pleural effusion or fibrosis, which is rated under the General Rating Formula for Restrictive Lung Disease. Under the General Formula, a 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value, or; the ratio of 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. 

A 60 percent rating is warranted for FEV-1 of 40- 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 cardiorespiratory limit). 38 C.F.R. § 4.97, DC 6845, General Rating Formula for Restrictive Lung Disease.

September 2016 VA examination report reflects PFT's show that the Veteran has FEV-1 of 77 percent predicted and FEV-1/FVC of 77 percent. The examiner noted that DLCO testing was not performed as it is not indicated for the Veteran's condition.

Previous VA examinations of record were found to be inadequate for rating purposes of the Board's January 2020 and October 2020 remands.

Pursuant to the October 2020 remand, the Veteran underwent a VA respiratory conditions examination in December 2020. At the December 2020 examination, PFT's could not be completed due to covid-19 restrictions. The examination report reflects that the Veteran does not require any oxygen therapy for his right lung residuals, and has no cor pulmonale, right ventricular hypertrophy, or pulmonary hypertension. Importantly, the examiner indicated that PFT had been performed previously and was not contraindicated due to any of these conditions. Further, there were no noted episodes of acute respiratory failure. 

PFT'S were later completed in November 2021 and associated with the file, along with a January 2022 addendum opinion. The November 2021 PFT's results show that the Veteran has FEV-1 of 46 percent predicted and FEV-1/FVC of 64 percent. The examiner noted that DLCO (SB) testing was not performed as it is not indicated for the Veteran's condition. 

Ultimately, the December 2020 VA examination report and the November 2021 PFT results support the Veteran's current 60 percent rating, but not a higher rating. The Board acknowledges the Veteran's argument that his right lung residuals have worsened since the December 2020 VA examination, however, points out that the PFT's results are much more recent, from November 2021, with a January 2022 addendum opinion. The passage of time alone does not warrant a new examination. Absent evidence of a worsening, a remand would only serve to delay a case that has already been on appeal for a number of years. In light of the fact that there is no evidence of a worsening since the Veteran's November 2021 PFT, a new examination is not warranted.

Since the December 2020 VA examination report, the November 2021 PFT's results, and the January 2021 addendum opinion support that the Veteran's residuals of shell fragment wound to the right lung are fully contemplated by his current 60 percent rating, the persuasive evidence of record is against this claim. Because the Veteran is a layman, he does not have the competence to give a probative opinion concerning the severity of his right lung residuals versus PFT results. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the medical evidence against this claim is more probative and, in fact, determinative of the ultimate disposition. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

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Accordingly, the persuasive evidence of record is against this claim of entitlement to a rating in excess of 60 percent for residuals of shell fragment wound to the right lung. In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, as the persuasive evidence is against the claim, this doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

 

S. T. Baxter

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Pak

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.