Citation Nr: A24072014 Decision Date: 11/05/24 Archive Date: 11/05/24 DOCKET NO. 220620-254125 DATE: November 5, 2024 ORDER An initial compensable disability rating for benign lung nodules is denied. FINDING OF FACT In March 2021 testing, the Veteran's post-bronchodilator FEV-1 was at 99 percent of the predicted value. CONCLUSION OF LAW The criteria for an initial compensable disability rating for benign lung nodules have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6820. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1989 to September 1993. He was awarded the Combat Action Ribbon, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) from an April 2021 decision by the Agency of Original Jurisdiction (AOJ) which granted service connection for lung nodules related to burn pit exposure during service. A noncompensable, or zero percent, disability rating was assigned effective in February 2021. In April 2022, the Veteran disagreed with the disability rating assigned and filed a request for higher level review. The AOJ issued a higher level review decision in June 2022. The Veteran filed a VA Form 10182 requesting direct review by the Board the same month. Therefore, the Board may only consider the evidence of record at the time of the April 2021 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C. § 7104(a). A claimant bears the evidentiary burden to establish entitlement to the benefit sought. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. Dec. 17, 2021) (en banc). Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. The Veteran's pulmonary nodules were initially discovered following a January 2021 Airborne Hazards/Burn Pit Registry examination performed by the VA. A routine chest X-ray performed as part of the Registry examination was interpreted as showing a possible small pulmonary nodule on the right. This finding prompted a computed tomography scan of the chest which was performed in February 2021. This scan was interpreted as showing a 5.7mm X 4.9mm noncalcified nodule in the right lower lobe along with five tiny noncalcified pulmonary nodules in the right subpleural region. A March 2021 VA medical opinion linked the nodules to burn pit irritant exposures during the Veteran's Gulf War service time. A March 2021 VA medical report based upon records review yielded a diagnosis of lung nodules which the reviewer classified as "unspecified obstructive lung disease." No treatment is necessary for the lung nodules, but the Veteran was instructed to undergo regular follow-up with additional imaging studies and careful watching of the situation. According to the March 2021 VA report, the Veteran does not require oxygen therapy, oral bronchodilators, or inhaled medications. The Veteran himself described his functional impairment as, "every once in a while, I have to take a deep breath." Pulmonary function testing, both pre- and post-bronchodilator, was accomplished in March 2021. The reviewer opined that the FEV-1, percent predicted measurement, most accurately reflects the Veteran's level of disability resulting from obstructive lung disease. Pre-bronchodilator, his FEV-1 was at 72 percent of the predicted value, while post-bronchodilator, his FEV-1 was at 99 percent of the predicted value. The examiner interpreted the PFT results at consistent with a moderate obstructive component with a positive change after bronchodilator challenge. The Veteran's pulmonary nodules are rated under Diagnostic Code 6820 for benign neoplasms of the respiratory system. These are evaluated "using an appropriate respiratory analogy." 38 C.F.R. § 4.97. The most appropriate respiratory analogy for the obstruction caused by the pulmonary nodules is provided by the General Formula for Chronic Obstructive Lung Disease. This formula provides as follows: FEV-1 less than 40 percent of predicted value, or; the 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 for 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, is rated as 100 percent disabling. 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 cardiorespiratory limit) is rated as 60 percent disabling. 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 is rated as 30 percent disabling. FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted is rated as 10 percent disabling. 38 C.F.R. § 4.97. In every instance where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Special provisions regarding evaluation of respiratory conditions are found in 38 C.F.R. § 4.96. As relevant to this case, post-bronchodilator studies are required when pulmonary function tests 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(d)(4). When evaluating based on pulmonary function tests, post-bronchodilator results are to be used in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In these cases, the pre-bronchodilator values should be used for rating purposes. 38 C.F.R. § 4.96(d)(5). Lastly, adjudicators are instructed to use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). Applying these instructions to the Veteran's situation, using the FEV-1 percent predicted measurement upon the advice of the March 2021 VA medical reviewer, because the Veteran's post-bronchodilator FEV-1 was at 99 percent of the predicted value, this result fits squarely within the criteria for a zero percent disability rating. We observe that the attorney has argued for a 10 percent disability rating; however, the only potential basis for a 10 percent rating would be the use of pre-bronchodilator values. As set forth above, governing regulation requires the use of post-bronchodilator values. 38 C.F.R. § 4.96(d)(5). The Board also acknowledges the examiner's use of the subjective term moderate and the argument that a 10 percent rating should be applied by analogy. However, the criteria does not use subjective terms and the use of the obstructive lung disease criteria is consistent with the PFT interpretations. Thus, the evidence is against the assignment of an initial compensable disability rating for the Veteran's lung nodules. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harter, Heather J. 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.