Citation Nr: 0007093 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 95-33 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for residuals of a lobectomy of the right lung, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Wm. Kenan Torrans, Associate Counsel INTRODUCTION The veteran served on active duty from January 1961 to February 1986. This matter arises from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefit sought. The veteran filed a timely appeal and the case has been referred to the Board of Veterans' Appeals (Board) for resolution. As a preliminary matter, the Board observes that in his brief on appeal of February 2000, the veteran and his service representative appear to have raised an issue with respect to the propriety of the November 1987 reduction of his service- connected residuals of adenocarcinoma of the right lung from 100 to 30 percent. The veteran essentially contends that he was not given any notice of a proposed reduction, and that the RO committed a form of clear and unmistakable error (CUE) in its reduction of his disability evaluation. The February 2000 brief on appeal is the first instance of this issue having been raised, and inasmuch as the issue is not before the Board at this time, it is referred to the RO for appropriate action. In addition, the Board notes that in his substantive appeal of September 1995, the veteran requested that he be afforded a personal hearing before a member of the Travel Board. The record shows that this request was subsequently withdrawn in October 1995. Therefore, the Board will proceed with its review of the veteran's appeal at this time. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable resolution of the issue on appeal has been obtained by the RO. 2. The veteran's residuals of a lobectomy of the right lung is objectively shown to be productive of at least moderate COPD with FEV-1 of 58-percent predicted, FEV-1/FVC of 80- percent predicted, and DLCO(sb) of 86-percent predicted. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for residuals of a lobectomy of the right lung have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.97, Diagnostic Code 6844 (1999); 38 C.F.R. § 4.97, Diagnostic Code 6816 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The preliminary question before the Board is whether the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107 (West 1991), and, if so, whether the VA has properly assisted him in the development of his claim. A mere allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 628, 632 (1992). Accordingly, the Board finds that the veteran has presented a claim that is well grounded. Once a claimant has presented a well-grounded claim, VA has a duty to assist him in developing facts which are pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for an equitable resolution of the issue on appeal has been obtained. That evidence includes the veteran's service medical records, records of treatment following service, reports of VA rating examinations, and personal statements made by the veteran in his own behalf. The Board is not aware of any additional relevant evidence which is available in connection with this appeal. Therefore, no further assistance to the veteran regarding the development of evidence is required. See 38 U.S.C.A. § 5107(a); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). Disability evaluations are determined by evaluating the extent to which the veteran's service-connected disability affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). In addition, where entitlement to compensation has already been established, and an increase in a disability evaluation is at issue, it is the present level of disability which is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Historically, service connection for what was initially characterized as adenocarcinoma of the lung was granted by a March 1986 rating decision, and a 100 percent evaluation was assigned, effective from February 19, 1986. At the time of the initial rating decision, the veteran was noted to have undergone a right upper and middle lobectomy in October 1985. By a rating decision of November 1987, the veteran's disability evaluation was reduced from 100 to 30 percent, effective from February 1, 1988. This decision was based upon evidence showing that the veteran had not received any additional treatment for his residuals of adenocarcinoma and lobectomy. Further, a VA rating examination conducted in September 1987 showed that the veteran's chest was within normal limits, and that there was no evidence of recurrent disease. The veteran complained of pain in his left chest, but such was not considered to be related to his residuals of the lobectomy. In November 1994, the veteran filed a claim for an increased evaluation for his service-connected residuals of a right lobectomy. He contended, in substance, that he was experiencing increased difficulty breathing, and that he had a great deal of pain which had increased in severity since he was discharged from service. The veteran's claim was denied by an April 1995 rating decision, and this appeal followed. Contemporaneous clinical treatment records dating from February 1986 through October 1993 show that the veteran had undergone a right lobectomy in 1985, and that he continued to complain of chest pain. The treating physicians noted that it was of unknown etiology, but that the pain was probably musculoskeletal in origin. The veteran was also noted to have a well healed, asymptomatic surgical scar from his lobectomy. X-ray results dated in October 1991 showed that the veteran had post-operative changes to the right hemithorax, but with no interval change and no evidence of recurrent disease. The veteran underwent a VA rating examination in January 1995. The report of that examination shows that the veteran was then employed as a photographer. The veteran reported experiencing shortness of breath while going up and down stairs carrying his camera equipment. In addition, the veteran complained of vague discomfort on the right side of his chest which was worse in winter. He denied having experienced any hemoptysis or pneumonia since his 1985 surgery, and was being followed by the Tumor Register at Wright-Patterson Air Force Base. On examination, the veteran was not found to have evidence of intercostal recession on his chest. There was a 12-inch hypertrophic scar on the right side of the chest, posterolateral. The veteran had subjective, vague pain in the right lateral thoracic area, but no point of tenderness. The examiner noted that the veteran was vague about the pain, and he indicated that the radiation of the pain moved up or down, but the veteran was unable to pinpoint the location of the pain. There was no evidence of rhonchi or rales, and no dyspnea at rest was found. The examiner diagnosed a history of adenocarcinoma of the right upper lobe, status-post resection of the right upper and middle lobes without recurrence. Vague residual right-sided musculoskeletal pain and subjective shortness of breath on mild exertion was also diagnosed. In addition, the examiner found that following his review of pulmonary function test (PFT) results, the veteran had mild to moderate obstructive airway disease. However, the PFT results were not included with the examination report. The veteran had also undergone a previous chest X-ray in May 1994, in connection with an Agent Orange examination. The X-ray results at that time showed that the veteran had right thoracotomy changes in the form of a rib resection and surgical sutures and clips with slightly elevated right hemidiaphragm and some volume loss in the right lung with prominent right hilum. In November 1996, the veteran underwent an additional VA rating examination. The report of that examination shows that the veteran indicated that his breathing was improved following surgery, but that it was not as good as it had been prior to surgery. The veteran indicated that he experienced constant pain in his right chest and low back area, and that he would often experience pain and shortness of breath on coughing. The veteran also reported that he experienced some shortness of breath when climbing stairs, but that he regularly exercised. According to the veteran, his major problem involved a decreased energy level with decreased breathing capacity. He stated that, since 1991, he was no longer able to cut his whole lawn at once, but that he would have to cut half of the lawn at one time, and the remainder at another time. The veteran reported that he was employed as a videographer, and that he had experienced increased shortness of breath on hauling his equipment. The veteran also indicated that he worked 40 hours per week, and had not missed any time from work due to his service-connected disability. On examination, the veteran was observed to be able to walk into the examination room without dyspnea. There was an obvious depression over the supraclavicular area on the right. In addition, there was a nontender 29-centimeter (cm) crescent shaped surgical scar on the right side of his chest. The chest was otherwise symmetrical with full and equal expansion. Breath sounds were normal and present in all areas except for the posterior right lower lobe. The veteran did not have any cyanosis of the lips, hands, or fingers suggestive of poor oxygen delivery. The veteran did report some complaint of pain in his right side, but there was no palpable tenderness, heat, or edema found. The pain could not be reproduced. In addition, there was no paraspinal or vertebral tenderness indicated. There was no active evidence of a malignant process found. The diagnosis was status-post surgical removal of carcinoma of the lung in 1985 with residual intercostal muscle discomfort, no objective evidence of pain on examination. In addition, the veteran was noted to have chronic obstructive pulmonary disease (COPD) with reactive airways and no trappings or hyperinflation consistent with idiopathic asthmatic bronchitis. Chest X- rays showed post surgical changes involving the right lung. Anastomotic staples were present in the hilar region and there was diminution in the right hemithoracic volume with elevation of the hemidiaphragm. The residual right lung showed no evidence of tumor. There had been a resection of a posterior portion of the 5th rib on the right. No significant changes from the May 1994 X-ray were noted. The veteran's PFT results were as follows: Forced expiratory volume in one second (FEV1) of 58 percent predicted; forced expiratory volume in one second as a percent of forced vital capacity (FEV1/FVC) of 65 percent actual, and of 80 percent predicted; and diffusion capacity of carbon monoxide, single breath (DLCO(sb)) of 86 percent predicted. The examiner's report of the PFT indicated that FEV1/FVC was reduced, and that the FEV1 was moderately-severely reduced. After bronchodilator administration, there was a significant increase in FEV1. DLCO was characterized as normal. The examiner's impression indicated that spirometry revealed a moderately-severe obstructive ventilatory defect. A significant response to bronchodilators indicated a reversible component to the obstruction,. Lung volumes revealed no restrictive ventilatory defect, and there was no evidence of hyperinflation and air trapping. There was also no gas exchange abnormality. Under the regulations in effect when the veteran's claim for an increased evaluation was received, assignment of a 30 percent evaluation was warranted for a unilateral lobectomy under 38 C.F.R. § 4.97, Diagnostic Code 6816 (1996). Under that diagnostic code, a 50 percent evaluation was warranted for a bilateral lobectomy. Id. In addition, the Board notes that new or malignant growths of the respiratory system, exclusive of skin growths warranted assignment of a 100 percent evaluation under 38 C.F.R. § 4.97, Diagnostic Code 6819 (1996). A note to that diagnostic code indicates that the 100 percent evaluation would be continued for two years following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures. If there had been no local recurrence or metastases, the disability was to be rated on residuals. In the present case, the veteran was not shown to suffer from recurrences or metastases of his adenocarcinoma of the right lung. By regulatory amendment which became effective from October 7, 1996, substantive changes were made to the schedular criteria for evaluating respiratory disorders, such as that for which the veteran is service connected, previously set forth at 38 C.F.R. § 4.97, Diagnostic Code 6816 (1996, now codified at 38 C.F.R. § 4.97, Diagnostic Code 6844 (1999). As the revised regulations came into effect during the pendency of the veteran's claim, the issue of an increased rating for the veteran's residuals of a lobectomy of the right lung must be evaluated under both the former and the revised schedular criteria. See Karnas v. Derwinski, 1 Vet. App. 301 (1991). However, with respect to the application of the revised criteria to the evidence of record, the revised criteria can only be applied from the time that the new criteria became effective. Here, the revised regulations can only be applied from October 7, 1996. Evidence submitted prior to that date can only be evaluated under the former criteria under Diagnostic Code 6816. See Rhodan v. West, 12 Vet. App. 55 (1998). Under the revised criteria for evaluating post-surgical residuals of adenocarcinoma (residuals of a lobectomy) under Diagnostic Code 6844, a 30 percent evaluation is contemplated for FEV-1 of 56- to 70 percent predicted, FEV-1/FVC of 56- to 70-percent predicted, or; DLCO(sb) of 56- to 65-percent predicted. Assignment of a 60 percent evaluation is warranted where there is 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). For assignment of a 100 percent evaluation, there must be a showing of FEV-1 of less than 40 percent of predicted value, or; FEV-1/FVC of less than 40 percent, or; DLCO(sb) of less than 40-percent predicted, or; maximum exercise capacity of less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; right ventricular hypertrophy, or; pulmonary hypertension (shown by echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requirement of outpatient oxygen therapy. See 38 C.F.R. § 4.97, Diagnostic Code 6844 (1999). Applying the criteria for the veteran's residuals of a lobectomy to the evidence of record, the Board concludes that the currently assigned 30 percent evaluation is appropriate under both the former and the revised diagnostic criteria. The Board also finds that the preponderance of the evidence is against assignment of an evaluation in excess of 30 percent under any other diagnostic codes. As noted, the veteran was diagnosed with adenocarcinoma of the right lung, and underwent a lobectomy of the right lung in October 1985. The evidence shows that he currently does not experience any further malignancies or other disease process resulting from the adenocarcinoma. Under the former, criteria, a 30 percent evaluation for a unilateral lobectomy was the only rating available, as the veteran did not demonstrate other symptomatology, aside from the diminished overall lung capacity taken into consideration by that criteria. In addition, the Board notes that the veteran has been diagnosed with at least moderate COPD. While it is unclear whether the diagnosed COPD is a residual of the right lobectomy or whether it is a separate disease, the Board observes that both COPD and residuals of a lobectomy are now evaluated under the same diagnostic rating criteria. Inasmuch as both disorders affect the same bodily function and organs, notably the lungs and respiratory system, assigning separate disability ratings would constitute "pyramiding", as the veteran would be effectively rated twice for the same symptoms. See generally 38 C.F.R. § 4.14 (1999). In any event, under the revised criteria under Diagnostic Code 6844, the Board finds that the veteran's PFT results from the November 1996 VA rating examination are consistent with a 30 percent evaluation. As noted, the veteran was found to have FEV1 of 58 percent predicted; FEV1/FVC of 80 percent predicted, and DLCO(sb) was 86 percent predicted. Because the veteran's FEV-1 of 58 percent predicted falls within the 56- to 70 percent predicted under the criteria for assignment of a 30 percent evaluation, the Board finds that that rating is appropriate. The veteran's FEV1/FVC and DLCO readings were consistent with the criteria warranting assignment of a 10 percent evaluation. See 38 C.F.R. § 4.97, Diagnostic Code 6844 (1999). The Board further recognizes that the veteran has experienced increased shortness of breath, and that he has complained of experiencing pain in the right side of his chest. However, the Board notes that the veteran's complaints of pain were of a subjective nature only, and could not be objectively confirmed during the course of the examination. Further, while acknowledging that the veteran experiences shortness of breath on climbing stairs, such functional impairment is contemplated by the assigned 30 percent evaluation. Moreover, the Board finds that there is no evidence to show that the veteran's PFT results are more severe than indicated by the November 1996 examination results, and he has made no assertions that his respiratory function has diminished since he underwent the November 1996 PFT. Further, there is no evidence that the veteran requires outpatient oxygen therapy, that he has experienced any acute respiratory failure, or other symptoms warranting assignment of a 100 percent evaluation under Diagnostic Code 6844. Accordingly, the Board finds that his appeal for an evaluation in excess of 30 percent for his residuals of a right lung lobectomy must be denied. The potential application of the various provisions of Title 38 of the Code of Federal Regulations (1999) have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Here there is no showing that the disability under consideration, residuals of a right lung lobectomy, have caused marked interference with employment, have necessitated frequent periods of hospitalization, or otherwise render impracticable the regular schedular standards. The Board notes that the veteran underwent a lobectomy of the right lung in October 1985, and that he now has what is characterized as moderate COPD. However, he is not shown to have undergone any inpatient treatment for these problems since 1985, although he has been followed by a tumor clinic to prevent recurrences of the adenocarcinoma of the right lung. In any event, the veteran indicated that he was employed full-time as a videographer following his retirement from the Air Force after approximately 25 years, and that he had not missed any significant time from work due to his respiratory disability. Therefore, there has not been marked interference with his employment as a result of his service- connected respiratory disability. Therefore, in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (1999) is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As there is not an approximate balance of positive and negative evidence regarding the merits of the veteran's claim that would give rise to reasonable doubt in his favor, the provisions of 38 U.S.C.A. § 5107 are not applicable. Should the veteran's disability picture change, he may apply at any time for an increase in his assigned disability rating. See 38 C.F.R. § 4.1. At present, however, the Board finds no basis upon which to grant an increased evaluation in excess of 30 percent for the veteran's residuals of a right lung lobectomy. ORDER Entitlement to an evaluation in excess of 30 percent for residuals of a right lung lobectomy is denied. JAMES A. FROST Acting Member, Board of Veterans' Appeals