Citation Nr: 0002995 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 97- 33 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an increased evaluation for residuals of carcinoma of the lung, currently rated 60 percent disabling. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD P. H. Mathis, Counsel INTRODUCTION The veteran served on active duty from September 1966 to October 1969. This case is before the Board of Veterans' Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin, which confirmed a 60 percent evaluation for the veteran's pulmonary disability in August 1997. The veteran failed to report for a hearing he had requested in January 1998. By a rating decision in April 1999, the RO increased from 10 to 20 percent the disability rating assigned for right shoulder pain secondary to treatment for lung cancer, and granted entitlement to a total rating based on individual unemployability. The only developed and certified issue on appeal is that of entitlement to an increased rating for pulmonary disability. FINDING OF FACT Objectively, FEV1 is greater than 40 percent of the predicted value, the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV1 /FVC) is greater than 40 percent, the Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is greater than 40-percent of that predicted, there are no cardiac or respiratory limitations, and cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), episodes of acute respiratory failure, or a need for outpatient oxygen therapy, are not currently demonstrated. CONCLUSION OF LAW The schedular criteria for an increased rating for residuals of carcinoma of the lung, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.97, Diagnostic Code 6819-6845 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that his service-connected pulmonary disorder is more severe than currently evaluated, and that consequently he is entitled to an increased disability rating. Initially, the Board finds that the veteran's claim for an increased rating evaluation for his service connected pulmonary disorder is well grounded, in that he has presented a plausible claim. 38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board finds that no further development is necessary before appellate disposition is completed. Accordingly, the duty to assist has been met. Where entitlement to VA compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). 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 (1999). Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The percentage ratings for each diagnostic code represent the average impairment of earning capacity resulting from disability. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. Id. Pulmonary Disorder Rating-Factual Background On VA pulmonary examination in August 1998, the veteran was working as a part-time bartender. His history was that lung cancer was diagnosed in 1995, and that a biopsy revealed stage III, non-small-cell inoperable lung cancer. He received intense high dose radiation in March 1995. Since then he had done quite well over all. He had had no shortness of breath, and only mild dyspnea on exertion with strenuous exercise. He was able to climb over two flights of stairs without being markedly short of breath. He had a good appetite and good energy. There was no cough or hemoptysis, and no abdominal pain was present. He had right shoulder pain related to the service-connected disability, but he had no other chest pain, skin problems, rashes or pruritus. His weight had been stable. He did not use medications such as meter dose inhaler or anything to aid with his breathing. He did not require oxygen. The veteran had previously been a heavy smoker, and he still smoked on a regular basis, but he was trying to cut down. On examination, his blood pressure was 110/60. He had no clubbing of the digits. There was no evidence of metastatic nodules. His lungs were clear to auscultation with rhonchi which changed with cough. There were no rales or wheezing. Blood work was largely normal except for a slight microcytic anemia. Chest x-rays showed no new masses, but revealed scarring which was consistent with radiotherapy with no interval change. The clinical impression was that the veteran was status post carcinoma of the lung post radiation therapy with amazingly no evidence of spread or even primary disease and no severe symptoms other than an individual with his amount of smoking history would have. The examiner further reported in October 1998, that there were no residuals of lung cancer which would preclude sedentary employment for the veteran. In March 1999, the veteran's pulmonary function tests were repeated with new equipment to ensure that the numbers were accurate. FVC was 5.10 which was 93% of predicted value pre- drug and 4.9 which was 92% of that predicted post drug. FEV1 was 4.11, which was 98% of predicted value pre-drug, and 4.17 which was 101% of that predicted post-drug. The ratio was 78.8 which is 108% of that predicted pre-drug and 89 which is 113% of that predicted. DLCO SB was 15.45 which was 50% of that predicted. The examiner opined that the DLCO value most accurately reflects the level of the veteran's pulmonary disability. In April 1999, the examiner commented that the veteran's primary defect is abnormal diffusion capacity which in the absence of interstitial lung disease, as here, is almost entirely due to radiation fibrosis. Analysis The veteran was awarded a 100 disability rating for carcinoma of the lung from April 1995 to March 1997. In November 1996, new rating criteria were promulgated for pulmonary diseases. Factors becoming important based on those criteria concern the veteran's maximum exercise capacity and a demonstration of whether cor pulmonale, right ventricular hypertrophy, pulmonary hypertension or acute respiratory failure are present, and whether outpatient oxygen therapy is required. Here radiation fibrosis is the veteran's primary residual of his lung cancer, which in the words of one VA examiner has amazingly disappeared. Under 38 C.F.R. § 4.97, Diagnostic Code 6819 (1996), a 100 percent rating was warranted for malignant neoplasms in any specified part of the respiratory system exclusive of skin growths. The 100 percent rating was for continuation for two years following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure; at that point, if there had been no local recurrence or metastasis, the rating was made on residuals. (Effective October 7, 1996, Code 6819 was amended to reflect a continuance of the 100 percent rating for a six month period rather than two years.) Prior to October 7, 1996, under a related diagnostic code, respiratory disease including inactive tuberculosis or tuberculous pleurisy was assigned a 60 percent rating when there were severe residuals with extensive fibrosis, severe dyspnea on slight exertion with corresponding ventilatory deficit confirmed by pulmonary function tests with marked impairment of health. The 100 percent rating required pronounced residuals: advanced fibrosis with severe ventilatory deficit manifested by dyspnea at rest, marked restriction of chest expansion, with pronounced impairment of bodily vigor. 38 C.F.R. § 4.97, Code 6731-6732 (1996). Where the law changes after a claim has been filed or reopened but before the administrative or judicial process has been concluded, the version most favorable will apply unless Congress provided otherwise or permitted the Secretary to provide otherwise and the Secretary did so. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). As noted, the rating criteria were revised, effective October 7, 1996. The Federal Register clarifies that this was not a liberalization but a revision to ensure the use of current medical terminology and unambiguous criteria, as well as to reflect medical advances. 61 Fed. Reg. 46720 (Sep. 5, 1996). Regarding the rating of coexisting respiratory conditions: Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96 (1999). The Board has considered both sets of rating criteria inasmuch as the total rating for lung cancer was assigned in 1995 prior to the implementation of the new criteria. The veteran's statements on his behalf comprise the evidence in support of his claim. In contrast, however, the medical findings, including the most recent pulmonary function studies with detailed review of the veteran's clinical history, are of far greater probative value and fail to demonstrate that a higher rating is warranted. The Board has carefully reviewed all applicable rating criteria assigned to pulmonary disability. A review of the evidence reflects that the veteran's pulmonary disorder is most properly evaluated under Diagnostic Codes 6819 and 6845 of the new criteria because the ratings are more favorable. For example, under the previous rating criteria, the veteran's pulmonary residuals cannot be classified even as severe with marked impairment of health which is required for the 60 percent rating, let alone as demonstrating pronounced disability, which is required for the next higher disability evaluation providing a 100% schedular rating. Under the new regulations a 60 percent evaluation is warranted under Diagnostic Code 6845 for chronic pleural effusion or fibrosis when FEV1 is 40 to 55 percent of predicted, or FEV1 /FVC is 40 to 55 percent, or; DCLO (SB) is 40 to 55 percent of predicted, or; maximum oxygen consumption is 15 to 20 ml./kg./min. (with cardiorespiratory limit). The next higher evaluation of 100 percent is warranted when the findings include FEV1 less than 40 percent of predicted value, or; the ratio of forced expiratory volume in one second to forced vital capacity (FEV1 /FVC) is less than 40 percent, or; diffusion capacity of the lung for carbon monoxide by the single breath method (DCLO (SB)) is less than 40 percent of predicted, or; maximum exercise capacity is less than 15 ml./kg./min. oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure) or right ventricular hypertrophy is evident, or; pulmonary hypertension (shown by echo or cardiac catheterization) is evident, or; episodes of acute respiratory failure, or; when outpatient oxygen therapy is required. There is no objective evidence here which would warrant a rating in excess of 60 percent. The veteran has made an apparently remarkable recovery from stage III inoperable lung cancer diagnosed in 1995. Admittedly, he sustained right shoulder disability from radiation therapy which ended his days of strenuous full time employment, but the pulmonary findings themselves are in the words of VA's examiner quite amazing. Specifically, the veteran, who continues to smoke on a regular basis, has had no shortness of breath, and only mild dyspnea on exertion with strenuous exercise. For example, he is able to climb over two flights of stairs without being markedly short of breath. On examination, there was no cough or hemoptysis, his weight has been stable, and he does not require medications such as meter dose inhaler or anything to aid with his breathing, specifically he does not require oxygen. On examination, his lungs were clear to auscultation, and chest x-rays showed no new masses, but revealed scarring which was consistent with radiotherapy. The clinical impression is that the veteran is status post carcinoma of the lung post radiation therapy with amazingly no evidence of spread or even primary disease and no severe symptoms other than an individual with his amount of smoking history would have. The objective findings on examination are clearly against the claim for an increased rating inasmuch as they fall far short of the requirements for a higher schedular disability rating. Moreover, the objective evidence reflects that the pulmonary disorder was not the primary cause of the veteran's unemployment in recent years, but rather the appellant's service connected shoulder disorder was the cause, which with the lung residuals have resulted in a total disability rating being assigned based on individual unemployability. No higher disability rating is warranted here for pulmonary disease. Application of the schedular criteria to the recent pulmonary function results clearly reflect that FEV1 is greater than 40 percent of the predicted value; that the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV1 /FVC) is greater than 40 percent; that the Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is greater than 40 percent of that predicted; that there are no cardiac or respiratory limitations, including cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, and that episodes of acute respiratory failure or any episodes which would require outpatient oxygen therapy, are not demonstrated. Therefore, a schedular rating in excess of 60 percent is not warranted. Further, the Board concludes that the pulmonary residuals do not approximate any applicable criteria for a rating higher than 60 percent. Although it is true that the veteran has not been employed on a full-time basis in recent years, he has recently worked part-time as a bartender, and it is apparent that his service-connected shoulder disability is the reason he had to terminate the rather strenuous industrial work he had done full time. In sum, there is no indication in the record that any interference with his employment status has been due solely to the service- connected pulmonary disorder. Further, the record does not contain evidence of hospitalization for his service-connected lung disability recently. It cannot be concluded, therefore, that the respiratory disorder has resulted in frequent periods of hospitalization. Thus, the record does not present a case where the 60 percent rating for the veteran's pulmonary disorder is found to be inadequate. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an increased evaluation for residuals of carcinoma of the lung, is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals