Citation Nr: 24032012 Decision Date: 10/21/24 Archive Date: 10/21/24 DOCKET NO. 18-30 950 DATE: October 21, 2024 ORDER Entitlement to a disability rating of 10 percent, but no higher, for restrictive lung disease with atelectasis of the lingula is granted. FINDING OF FACT During the period on appeal, the persuasive evidence shows that the Veteran's restrictive lung disease manifested by a post-bronchodilator forced expiratory volume in one second (FEV-1) no worse than 78 percent predicted. CONCLUSION OF LAW The criteria for a disability rating of 10 percent, but no higher, for restrictive lung disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code (DC) 6840. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 2004 to January 2006 and from November 2007 to January 2009. The Veteran's service awards include a Combat Action Badge. This?matter came before the Board of Veterans' Appeals (Board)?on appeal from December 2017 ?rating decision issued?by a Department of Veterans Affairs (VA) Regional Office (RO).??? In October 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. In March 2022, September 2022, and January 2023 the Board remanded the claim of entitlement to a higher rating for restrictive lung disease to the agency of original jurisdiction (AOJ) for further development. The case has been returned to the Board for appellate review. In a March 2024 Statement, the Veteran terminated his prior representative. In April 2024, the Veteran submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, appointing a new representative. However, as the form was not signed by an official representative of the organization, it is invalid. The Veteran was informed of this issue in a May 30, 2024 letter, requesting a completed form within 30 days from the date of the letter. The Veteran did not respond. Thus, the Board proceeds with the understanding that the Veteran is appearing pro se. The Veteran is hereby advised that he is permitted to appoint a valid representative at any time. A February 2024 rating decision granted entitlement to a TDIU effective January 1, 2019. In February 2024, the Veteran submitted a VA Form 10182, which identified the January 2024 rating decision as the decision being appealed, opting into the Appeals Modernization Act (AMA) system. Consequently, entitlement to a TDIU will be addressed in a separate AMA Board decision. Entitlement to a compensable disability rating for restrictive lung disease with atelectasis of the lingula. The Veteran contends that he is entitled to a compensable rating for his restrictive lung disease. See, e.g., October 2021 Board hearing transcript. For the reasons that follow, the Board finds that a rating of 10 percent, but no higher, is warranted. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran's restrictive lung disease has been evaluated under DC 6840, for which the General Rating Formula for Restrictive Lung Disease applies. Under DC 6840, a 10 percent rating is warranted where the forced expiratory volume in one second (FEV-1) is 71- to 80-percent of predicted value, or; the ratio of FEV-1 to forced vital capacity (FEV-1/FVC) is 71 to 80 percent, or; diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO) (SB) is 66- to 80-percent of predicted value. A 30 percent rating is warranted where FEV-1 is 56- to 70-percent of predicted value, or; FEV-1/FVC is 56 to 70 percent, or; DLCO (SB) is 56- to 65-percent predicted. A 60 percent rating is warranted where FEV-1 is 40- to 55- percent predicted, or; FEV-1/FVC is 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 cardiorespiratory limit). A 100 percent rating is warranted for 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. 38 C.F.R. § 4.97, DC 6840. In every instance where the schedule does not provide a zero percent evaluation for a DC, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are done for disability evaluation purposes except when pre-bronchodilator PFT results are normal, or the examiner determines they should not be done and explains why. 38 C.F.R. § 4.96(d)(4). When evaluating based on pulmonary function tests, post-bronchodilator results are to be used unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case, the pre-bronchodilator results are used for rating purposes. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different PFT such that the level of evaluation would differ depending on which test result is used, the regulations instruct use of the test result that the examiner states most accurately reflect the level of disability. 38 C.F.R. § 4.96(d)(6). If the FEV-1 and the FVC are both greater than 100 percent, then a compensable evaluation cannot be assigned based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96(d)(7). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 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 claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran was afforded a VA examination in December 2019. At that time, he reported that his symptoms of blockage of upper airway throat esophagus became worse in the past 18 months. His condition did not require the use of oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. No other pertinent physical findings, complications, conditions, or signs or symptoms of pleural plaques were noted. PFTs were performed and showed post-bronchodilator results of FVC 65 percent predicted; FEV-1 83 percent predicted; and FEV-1/FVC 127 percent predicted. The examiner indicated that the FEV-1/FVC percentage predicted most accurately reflected the Veteran's level of disability. No other test findings or results were indicated. Pursuant to the March 2022 Board's remand directives, the Veteran underwent a VA examination in May 2022. However, the September 2022 Board decision found that the examiner's conclusions were inconsistent and thus, not adequate for adjudicative purposes. Pursuant to the September 2022 Board's remand directives, the Veteran underwent a VA examination for his restrictive lung disease in October 2022. At that time, the examiner diagnosed the Veteran with restrictive lung disease of unknown type. Upon PFT, the VA examiner noted that the FVC most accurately reflected the Veteran's level of disability. The pre-bronchodilator FVC results of 71 percent predicted and post-bronchodilator FVC results of 67 percent predicted were noted. The examiner noted that the Veteran's atelectasis resolved, but there is evidence of interstitial thickening which may explain the restrictive pattern on PFTs, and it should be evaluated by a pulmonologist. In light of the foregoing, the Board finds that the examination findings are not adequate for evaluative purposes. Pursuant to the January 2023 Board's remand directives, a February 2023 VA examination is of record. At that time, it was noted that the Veteran reported experiencing shortness of breath and chest pain. He reported that inhalers made the symptoms worse. His condition did not require the use of oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. Benign tumor was noted. The examiner noted that the Veteran experiences shortness of breath and chest pain. No other pertinent physical findings, complications, conditions, or signs or symptoms of pleural plaques were noted. No pulmonary function tests were performed. The examiner noted that the Veteran's condition impacts his ability to work due to exertional shortness of breath. An August 2023 VA examination addendum is also of record. The examiner confirmed that pulmonary function tests were performed during the February 2023 VA examination. The pre-bronchodilator results of FVC 57 percent predicted; FEV-1 68 percent predicted; and FEV-1/FVC 91 percent predicted were noted. Post-bronchodilator results of FVC 86 percent predicted; FEV-1 65 percent predicted; and FEV-1/FVC 88 percent predicted were also noted. The examiner indicated the FEV-1/FVC percentage predicted most accurately reflected the Veteran's level of disability. The examiner noted that these results are an accurate representation of the Veteran's condition. The Veteran underwent another VA examination in September 2023. At that time, he reported that his condition has worsened. It was noted that his condition did not require the use of oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. The examiner noted that the Veteran experiences shortness of breath and chest pain. No other pertinent physical findings, complications, conditions, or signs or symptoms of pleural plaques were noted. The pre-bronchodilator results of FVC 72 percent predicted; FEV-1 57 percent predicted; and FEV-1/FVC 0 percent predicted were noted. Post-bronchodilator results of FVC 66 percent predicted; FEV-1 78 percent predicted; and FEV-1/FVC 0 percent predicted were also noted. The examiner indicated that the FEV-1 percentage predicted most accurately reflected the Veteran's level of disability. The examiner noted that due to the Veteran's condition he is only able to perform sedentary work. The Veteran underwent an additional VA examination in December 2023. At that time, he reported experiencing shortness of breath and tightness in chest. He denied any treatment for his condition. No other pertinent physical findings, complications, conditions, or signs or symptoms of pleural plaques were noted. The pre-bronchodilator results of FVC 82 percent predicted; FEV-1 95 percent predicted; and FEV-1/FVC 115 percent predicted were noted. The examiner indicated that the FEV-1/FVC percentage predicted most accurately reflected the Veteran's level of disability. The examiner noted that post-bronchodilator tests were not completed because the Veteran's pre-bronchodilator results were normal. The examiner concluded that the Veteran's condition affects his ability to work due to shortness of breath with exertion, such as prolonged walking. A review of the Veteran's VA treatment records does not reflect additional PFT results or other findings to suggest more severe disability than reported at the VA examinations. Based on the following, after resolving all reasonable doubt in the Veteran's favor, the Board finds that a 10 percent rating, but no higher, is warranted throughout the entire period on appeal. As noted, DC 6840 does not provide for rating criteria for the disability based on symptoms, but rather serves to apply objective test results from PFTs to the rating criteria. Accordingly, upon review of the objective results from the VA examinations, the Board finds that a 10 percent rating is warranted for this period as the objective PFT evidence shows a FEV-1 of 78, which is between the ranges of 71 to 80 percent. See DC 6840. While there was no DLCO provided, which is required under VA regulations, the examiners noted that DLCO is not indicated for the Veteran's condition, satisfying the relevant regulation. See 38 C.F.R. § 4.96(d)(2). The Board finds that the persuasive evidence in the record relevant during this appeal period does not show that entitlement to an evaluation in excess of 10 percent is warranted. A higher evaluation of 30 percent is not warranted unless the evidence shows FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent predicted, DLCO of 40 to 55 percent predicted, or a maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. 38 C.F.R. § 4.97; DC 6840. Here, a value of 78 percent predicted for FEV-1 does not correspond with a 30 percent rating. See September 2023 VA Examination. The Board acknowledges that in the August 2023 addendum, it was noted that FEV-1 was 65 percent predicted. However, the examiner also indicated that the Veteran's FEV-1/FVC which was 88 percent predicted was the most accurate indicator of the Veteran's level of disability. Additionally, the VA examiner in September 2023 noted that the FEV-1 showing 78 percent predicted reflected the Veteran's most accurate level of disability. Thereafter, on VA examination in December 2023, the examiner indicated that post-bronchodilator testing was not warranted because the pre-bronchodilator testing was normal. As such, the Board finds that the Veteran's overall disability picture more nearly approximates the criteria for a 10 percent rating and no higher. Similarly, the higher evaluations of 60 and 100 percent are not warranted as there is no evidence the Veteran's FEV-1 has ever been 40 to 55 percent predicted, or less than 40 percent, respectively. The Board considered the Veteran's statements in support of a higher rating for restrictive lung condition. These statements are competent evidence as to the Veteran's observable symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board finds that the Veteran's symptoms and impairment are contemplated by the now assigned rating. Additionally, the medical evidence does not support the assignment of a higher rating based on increased severity. In sum, after resolving all reasonable doubt in the Veteran's favor, entitlement to a disability rating of 10 percent, but no higher, for the entire period on review for restrictive lung disease with atelectasis of the lingula is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776. Thus, to that extent only the appeal is granted. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, Associate 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.