Citation Nr: 9819048 Decision Date: 06/22/98 Archive Date: 07/06/98 DOCKET NO. 93-15 961 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating for right chest gunshot wound residuals, with adhesions, and a partial resection of the right lower lung lobe, currently rated as 40 percent disabling. 2. Entitlement to a compensable rating for diaphragm laceration residuals. 3. Entitlement to an increased rating for liver laceration residuals, currently rated as 10 percent disabling. 4. Entitlement to an increased rating for postoperative thoracotomy residuals, currently rated as 10 percent disabling. 5. Entitlement to a compensable rating for a right chest scar. 6. Entitlement to a compensable rating for a thoracic spine scar. 7. To be clarified. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James L. March, Counsel INTRODUCTION The veteran had active service from October 1951 to February 1953. This appeal arose from a July 1992 rating decision which, among other things, denied a claim for an increased rating for right chest gunshot wound residuals, with laceration of the diaphragm, adhesions and partial resection of the right lower lung lobe, a claim for an increased rating for liver laceration residuals and a claim for a compensable rating for right chest, back and abdominal scars. In June 1995, the Board of Veterans’ Appeals (Board) remanded the case to the RO. In a September 1997 rating action, the RO assigned a separate, noncompensable rating for the veteran’s diaphragm laceration residuals. Accordingly, this issue is characterized as a separate claim on appeal. The RO also recharacterized the claim for an increased rating for right chest, back, and abdominal scars, assigning a separate, 10 percent rating for postoperative thoracotomy residuals and noncompensable ratings for a right chest scar and thoracic spine scar. The issues pertaining to the rating of the veteran’s scars, as well as the claim for an increased rating for postoperative thoracotomy residuals, are addressed in a Remand following this decision. In an April 1994 written statement, the veteran, through his representative, appeared to assert a claim for service connection for a back disorder secondary to service-connected gunshot wound residuals. This matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in effect, that his right chest gunshot wound residuals, with adhesions and a partial resection of the right lower lung lobe, and his diaphragm and liver laceration residuals are more disabling than reflected by the current ratings. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. Based on a review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims for an increased rating for right chest gunshot wound residuals, with adhesions and a partial resection of the right lower lung lobe, for a compensable rating for diaphragm laceration residuals, and for an increased rating for liver laceration residuals. FINDINGS OF FACT 1. The veteran complains of shortness of breath and chest tightness, but there are no clinical findings or diagnoses of severe pleural cavity injury, cyanosis or tachycardia. 2. Pulmonary function tests show that forced vital capacity (FVC) is 69.2 percent of predicted value, with a forced expiratory volume in one second (FEV1)/FVC ratio of 84 percent and a Diffusion Capacity of Carbon Monoxide by the Single Breath Method (DLCOSB) of 139.2. 3. The veteran’s gunshot wound resulted in adhesions of the diaphragm. 4. The veteran’s liver laceration residuals are manifested by complaints of an uncomfortable numbness on the right side after strenuous activity, but liver function test results were within normal limits and the liver has been described as stable. CONCLUSIONS OF LAW 1. The criteria prior to October 7, 1996, for a disability rating in excess of 40 percent for residuals of a gunshot wound to the right chest, with a laceration of the diaphragm, adhesions, and a partial resection of the right lower lung lobe, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.97, Code 6818 (1996). 2. The criteria effective October 7, 1996, for a disability rating in excess of 40 percent for right chest gunshot wound residuals, with adhesions and a partial resection of the right lower lung lobe, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.97, Code 6843 (1997). 3. The criteria effective October 7, 1996, for a separate compensable rating for diaphragm laceration residuals have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.97, Code 6840 (1997). 4. The criteria for a disability rating in excess of 10 percent for liver laceration residuals have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.114, Code 7301 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran’s claims for increased or compensable ratings are “well-grounded” within the meaning of 38 U.S.C.A. § 5107(a). The United States Court of Veterans Appeals (Court) has held that, when a claimant asserts that a service connected disability has increased in severity, the claim is well-grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Facts In accordance with 38 C.F.R. § 4.1 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran’s service-connected pulmonary disabilities and liver laceration residuals and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue, except as discussed below. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Service medical records disclose that the veteran was wounded by enemy sniper fire on August 25, 1952. It was reported that the entrance wound was on the right flank, and the exit wound was on the right, upper, anterior thoracic region. A large liver wound was present with profuse hemorrhage. A perforation of the diaphragm was sutured. The hemorrhage from the liver was controlled with catgut, following considerable blood loss. The chest was drained anteriorly and posteriorly, and the abdomen was drained through the flank. Breath sounds were diminished over the right base posteriorly, with diminished vocal and tactile fremitus. Breath sounds, except at the base, were clear and normal. The mediastinum was in midline. Some abdominal tenderness was present; the right upper quadrant was normal. The impressions were missile wound to the abdomen and chest, involving the liver and right lung. On September 2, 1952, it was noted that the veteran had a well-healed abdominal inverted-L incision with sutures in place. There was a drain in a right lower quadrant stab wound, and two healing anterior chest wounds. There was also a clean, granulating three-centimeter right posterior chest wound. On September 27, 1952, it was reported that the veteran’s diagnosis was missile wound to the right chest and back. The veteran had no cough or chest pain, but he did complain of occasional dyspnea. Respirations were full and equal bilaterally, and there were two healed one-inch anterior chest wounds. There was dullness to percussion over the right lung base posteriorly and laterally, with markedly diminished breath sounds, and vocal and tactile fremitus. Deep palpation of the right upper quadrant elicited marked tenderness, which precluded examination of the liver. There were well-healed right para-median and thoraco-abdominal incisions, as well as a right lower quadrant stab wound. Examination of the back revealed a two-centimeter granulating wound just to the right of midline, at approximately the L2 level. On October 3, 1952, the veteran became dyspneic when walking to the mess hall. X-rays revealed questionable fluid in the right lung field. On October 21, he underwent a thoracotomy. The incision was made from three centimeters below the angle of the right scapula extending to the sternum in the 6th anterior interspace. Following surgery, the veteran’s diagnosis was changed to adhesions of the pleura due to missile wound. In December 1952, the veteran complained of pain on the right side with deep inspirations. He was placed on breathing exercises. A VA examination was conducted in April 1953. The veteran complained of chest pain when lifting, dyspnea on exertion, and chest tightness. Several scars were described. Chest x- rays showed pleural diaphragmatic adhesions and a rib resection. By rating action of July 1953, the RO, among other things, granted service connection and assigned a 40 percent rating under Diagnostic Code 6818 of the VA’s Schedule for Rating Disabilities (38 C.F.R. Part 4) for right chest gunshot wound residuals, including laceration of the diaphragm, extensive adhesions and partial resection of the right lower lobe. The RO also granted service connection and assigned a 10 percent rating under Diagnostic Code 7311 for liver laceration gunshot wound residuals. The veteran filed this claim for increased evaluations in November 1991. In a January 1992 x-ray examination report from Keller Army Hospital, in West Point, New York, the examiner noted that there was elevation of the right hemidiaphragm and irregularity of the right sixth posterior rib consistent with previous thoracotomy and pulmonary resection. Extensive degenerative change of the mid-thoracic spine was present, but the study was otherwise normal. In a March 1992 VA medical examination report, the examiner noted that the veteran had sustained a gunshot wound to the right chest, with laceration of his diaphragm and liver, during combat in August 1952. The veteran reported that he still experienced pain in the right, lower chest area where the bullet entered. He had dyspnea on mild exertion, but denied any cough. He was not receiving any medication for his chest discomfort, and he had no smoking history. On clinical evaluation, the examiner observed an eighteen-inch, right-sided thoracotomy scar. Chest expansion was equal bilaterally, but breath sounds were decreased at the right base of the lungs as compared to the left. There was an eight-inch vertical scar in the right upper quadrant and a four-inch scar in the right lower flank area. The abdomen was soft and nontender, with no organomegaly. There was no cardiovascular tenderness, and pulmonary function test results were within normal limits. The chest x-ray showed a status post right thoracotomy and pleural thickening at the right base, but there were no acute changes. The impressions were gunshot wound residuals, including a pleural cavity injury which was stable, and status post liver injury which was also stable. A report of an additional VA examination in March 1992 includes the veteran’s complaint of chest pain with shortness of breath. On clinical evaluation, the examiner noted that the veteran removed his shirt without difficulty. His abdomen and left lower chest revealed a healed, asymptomatic operative scar, twelve inches in length. There was a five- inch, healed asymptomatic thoracotomy scar on the right chest, four inches above the rib cage. There was also a fourteen-inch operative scar, healed and asymptomatic, extending from the right side of the back over the anterior chest. The examiner observed that all operation scars were healed without appreciable tissue loss. The sacral spinalis muscles had been penetrated. However, there were no adhesions, and no damage to tendons, bones, joints or nerves. Strength was normal and there was no muscle hernia. The diagnosis was healed gunshot wound, with incisional operation scar wounds. A report of a May 1992 VA pulmonary function test showed that the test results were within normal limits. At a November 1992 hearing, the veteran testified that he experienced a sensation of numbness in his chest with strenuous, or even minor, activity. His chest became very tight and painful. He also reported daily episodes of shortness of breath, even when sitting or lying in bed. He stated that had been hospitalized several years earlier for chest pain and shortness of breath and was found to have an irregular heartbeat. The veteran added that he had had his own business and that the foregoing symptoms hindered his work. With regard to his liver disorder, he said that he felt an uncomfortable numbness in his right side whenever he engaged in strenuous activity. He testified that he had no nausea or diarrhea, had never received medication for his liver, and had never been told of abnormal liver function test results. At a September 1995 VA examination, the veteran complained of almost constant right chest pain, which slightly increased in severity on exertion. He had shortness of breath on mild to moderate exertion, but there had been no significant change in the degree of shortness of breath since the previous VA examination, several years earlier. He stated that he was able to walk three to five blocks. The examiner noted that the veteran had a history of atrial fibrillation six years earlier. He reportedly converted to sinus rhythm on medical treatment and continued to receive Digoxin and Tenormin. There was a question of past hypertension and diabetes but no past major surgery. The veteran also complained of intermittent nervousness and palpitations. There was no past history of myocardial infarction or stroke. On clinical evaluation, his pulse was 70 beats per minute and regular. His blood pressure was 150/96, and his respirations were 18 per minute. There was no jugular venous distention. His apical pulse was not palpated, and there was regular rhythm. There was a questionable systolic click but no murmur. There was a thoracotomy scar of about sixteen inches which was well-healed and in the right chest. There was another four to six-inch scar. Good breath sounds were noted in the lungs bilaterally, except in the right base, where it was slightly decreased. There were no rales or rhonchi. Liver function test results were within normal limits. The cardiogram showed sinus bradycardia, but it was otherwise unremarkable. The chest x-ray revealed no new changes other than a previous right thoracotomy. The results of a stress thallium scan were within normal limits. The veteran was able to tolerate ten metabolic equivalents of work. He did not report for a pulmonary function test, but it was noted that a pulmonary function test performed two years earlier was within normal limits. The examiner concluded that the veteran had a history of hypertensive heart disease with atrial fibrillation, which was stable. The examiner specifically opined that there was no significant cardiovascular deficiency which could be related to the gunshot wound. Liver status was stable, and pulmonary condition appeared to be stable, although the examiner stated that some degree of restrictive lung disease could not be ruled out without a pulmonary function test. In a report of an additional September 1995 VA examination, the veteran’s gunshot entrance wound was described as entering the anterior abdomen, in the region of the liver. The exit wound was in the posterior chest on the right side. It was noted that he underwent surgery, including a thoracotomy, in the United States. There was, reportedly, no known bone injury at the time of the original gunshot wound. The veteran stated that he was never told that any rib resection was performed during the course of the thoracotomy, and there was no rib missing on physical examination. He had no specific musculoskeletal system complaints. The examiner observed an extensive, right-sided thoracotomy scar with what was described as a rather significant, vertical, abdominal scar from the original injury. The exit wound from the original gunshot wound was an approximately two-centimeter depressed scar in the region of T12 in the paraspinal area on the right. On palpation, there was a defect in the underlying paraspinal muscles in that area. The diagnosis was depressed and slightly painful scar secondary to a remote gunshot wound. At a May 1997 VA examination, the veteran complained of shortness of breath, including complete loss of breath on strenuous activity. He had no cough or hemoptysis, but he complained of a tremendous amount of chest tightness where the bullet had entered. He also complained of cardiac problems and reportedly was taking Tenormin and Lanoxin. On clinical evaluation, he was in no acute respiratory distress. His chest was of normal shape, with a scar about 20 inches long on the lateral aspect of the chest on the right side. The scar extended from the posterior to the anterior chest, with a seven-inch scar present in the right anterior chest. Tenderness was present over the right anterior lower rib cage where the bullet entered. There was no cyanosis and his pulse was about 70 beats per minute and irregular. An irregular heart rhythm at S1, S2 was present. Breath sounds were decreased at the right base of the lungs, but no rales or rhonchi were heard. Frontal and lateral x-ray examination of the chest revealed that the heart was within normal limits in size. There was right-sided pleural scarring, which was unchanged from a September 1995 study. No acute infiltrates were seen, but degenerative changes in the thoracic spine were noted. The impression was unchanged, right-sided pleural scarring, with no acute infiltrates. September 1997 VA pulmonary function test results disclosed that FVC was 69.2 percent of predicted value, FEV1 was 75.5 percent of predicted value, and the ratio of FEV1 to FVC was 84 percent. DLCOSB was 139.2. The diagnosis was status post right chest gunshot wound with residuals, status post thoracotomy and surgery and pleural scarring on x-ray examination. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran’s disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. VA regulations require that disability evaluations be based upon the most complete evaluation of the condition that feasibly can be constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of disability. Medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. Functional impairment is based on lack of usefulness. 38 C.F.R. §§ 4.1, 4.2, 4.10. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is “more appropriate” than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board finds that the RO applied the correct diagnostic codes. Indeed, the veteran has not alleged that different diagnostic codes should be applied. Pursuant to 38 C.F.R. § 4.1, a disability must be reviewed in relation to its history and there must be an emphasis upon the limitation of activity imposed by the disabling condition. Additionally, in deciding whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The regulations require that where there is a question as to which of two evaluations is to 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. As noted above, the veteran’s pulmonary gunshot wound residuals were previously assigned a 40 percent rating under Diagnostic Code 6818. Effective October 7, 1996, however, this disorder is rated as restrictive lung disease pursuant to Diagnostic Code 6843. The Court has held that, when a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply, unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The RO, in its September 1997 Supplemental Statement of the Case, provided the veteran the criteria for Diagnostic Code 6843. Accordingly, a procedural due process remand is unnecessary, and the Board will consider the claim for an increased rating for the veteran’s pulmonary disability under both former Diagnostic Code 6818 and current Diagnostic Code 6843. I. Pulmonary Disability A. 1996 Rating Schedule Under Diagnostic Code 6818 (1996) (which addressed residuals of pleural cavity injuries, including gunshot wounds), a 40 percent rating is warranted for moderately severe residuals with pain in chest and dyspnea on moderate exertion (exercise tolerance test), adhesions of diaphragm, with excursions restricted, moderate myocardial deficiency, and one or more of the following: thickened pleura, restricted expansion of lower chest, compensating contralateral emphysema, deformity of chest, scoliosis, and hemoptysis at intervals. A 60 percent rating would be assignable if the evidence showed severe residuals with tachycardia, dyspnea or cyanosis on slight exertion, adhesions of the diaphragm or pericardium, with marked restriction of excursion, or poor response to exercise. When residuals are totally incapacitating, a 100 percent rating is warranted. 38 C.F.R. § 4.97, Code 6818 (1996). At the September 1995 VA medical examination, the examiner specifically opined that there was no significant cardiovascular deficiency which could be related to the veteran’s gunshot wound. A chest x-ray examination report from the veteran’s most recent VA examination in May 1997, shows that the heart was within normal limits in size and that there was right-sided pleural scarring, unchanged from the September 1995 examination, with no acute infiltrates. Although the veteran complained of chest tightness and shortness of breath, including complete loss of breath on strenuous activity, there was no cyanosis, no finding of tachycardia and no clinical findings or diagnoses of severe pleural cavity residuals to warrant a 60 percent evaluation under Code 6818 (1996). In Esteban v. Brown, 6 Vet. App. 259, 262 (1994), the Court held that evaluations for distinct disabilities resulting from the same injury could be combined so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. Here, Diagnostic Code 6818, which again addressed residuals of pleural cavity injuries, including gunshot wounds, included symptomatology associated with the veteran’s diaphragm as well as other problems involving the pleural cavity and the organs therein. Thus, under the rating schedule as it existed prior to October 7, 1996, the veteran was not entitled to a separate rating for any residual disability involving his lacerated diaphragm. In sum, under Diagnostic Code 6818, the veteran’s disability picture more nearly approximates the criteria for a 40 percent evaluation. B. 1997 Rating Schedule Under the current rating schedule, Diagnostic Codes 6840 through 6845 provide the rating criteria for restrictive lung diseases. Diagnostic Code 6840 addresses diaphragm paralysis or paresis, and Diagnostic Code 6843 addresses “[t]raumatic chest wall defect, pneumothorax, hernia, etc.” The rating criteria for all of the restrictive lung diseases are the same and, for reasons described below, are not combined. Nonetheless, because the RO has separated the veteran’s pulmonary disability into two disorders, the Board, for the purpose of providing a logical structure for this decision, will also address them separately. 1. Right chest gunshot wound residuals, with adhesions and a partial resection of the right lower lung lobe Pursuant to Diagnostic Code 6843, a 30 percent evaluation is warranted where FEV1 is 56 to 70 percent of predicted value; or, FEV1/FVC is 56 to 70 percent of predicted value; or, DLCOSB is 56 to 65 percent of predicted value. A 60 percent evaluation is warranted where FEV1 is 40 to 55 percent of predicted value, or; FEV1/FVC is 40 to 55 percent of predicted value, or, DLCOSB is 40 to 55 percent of predicted value; or, there is a maximum oxygen consumption of 15 to 20 milliliters per kilogram per minute (with cardiorespiratory limit). A 100 percent rating requires FEV1 less than 40 percent of predicted value; or, the ratio of FEV1/FVC is less than 40 percent; or DLCOSB is less than 40 percent of predicted value; or, the maximum exercise capacity is less than 15 milliliters per kilogram per minute of oxygen consumption (with cardiac or respiratory limitation); or, there is 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, the claimant requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Code 6843 (1997). As noted above, pulmonary function test results from the veteran’s September 1997 VA examination showed that FVC was 69.2 percent of predicted value, the ratio of FEV1 to FVC was 84 percent and the DLCOSB was 139.2. These findings do not meet the level of 40 to 55 percent of the predicted values which is required for a 60 percent evaluation under Diagnostic Code 6843. Indeed, only one of the three alternative measures—the FVC value—meets the criteria for a 30 percent evaluation. The FEV1 to FVC ratio and the DLCOSB value do not meet the criteria for a 30 percent evaluation. Additionally, there are no clinical findings or diagnoses of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, acute respiratory failure, or a finding that the veteran requires outpatient oxygen therapy so as to warrant a 100 percent rating under Diagnostic Code 6843. Accordingly, the claim for an evaluation in excess of 40 percent for right chest gunshot wound residuals with adhesions and a partial resection of the right lower lung lobe must be denied. 2. Diaphragm Laceration Residuals As noted above diaphragm paralysis or paresis (rated under Diagnostic Code 6840) is rated pursuant to the same criteria as disabilities pursuant to Diagnostic Code 6843. That is, a 30 percent evaluation is warranted where FEV1 is 56 to 70 percent of predicted value; or, FEV1/FVC is 56 to 70 percent of predicted value; or, DLCOSB is 56 to 65 percent of predicted value. A 60 percent evaluation is warranted where FEV1 is 40 to 55 percent of predicted value, or; FEV1/FVC is 40 to 55 percent of predicted value, or, DLCOSB is 40 to 55 percent of predicted value; or, there is a maximum oxygen consumption of 15 to 20 milliliters per kilogram per minute (with cardiorespiratory limit). A 100 percent rating requires FEV1 less than 40 percent of predicted value; or, the ratio of FEV1/FVC is less than 40 percent; or DLCOSB is less than 40 percent of predicted value; or, the maximum exercise capacity is less than 15 milliliters per kilogram per minute of oxygen consumption (with cardiac or respiratory limitation); or, there is 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, the claimant requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Code 6840 (1997). Obviously, the analysis is the same as pursuant to Diagnostic Code 6843—that is, only the FVC value meets the criteria for a 30 percent evaluation, and none of the three alternative values meet the criteria for a 60 percent evaluation. Thus, an evaluation in excess of 40 percent for diaphragm laceration residuals would be denied. The Board, however is prohibited regulatorily from assigning a separate rating for the veteran’s service-connected diaphragm laceration residuals. The rating code provides that ratings under Codes 6822 through 6847 will not be combined with each other. 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. Although there is evidence in service of adhesions of the diaphragm, the evidence does not show that the severity of the overall disability warrants an elevation. As noted above, the veteran’s pulmonary function barely meets the criteria for a 30 percent evaluation under the new schedule. Although under the new rating criteria it would appear that an evaluation greater than 30 percent is not warranted for the veteran’s pulmonary disability, the veteran’s 40 percent rating is protected from reduction as it has been in effect for more than 20 years. 38 U.S.C.A. § 110 (West 1991). Furthermore, the Court has held that an evaluation may not be reduced solely due to a change in the regulations governing the evaluation of a veteran’s. Fugere v. Derwinski, 1 Vet. App. 103 (1990). Thus, under the new regulations, an evaluation greater than 40 percent is not warranted. II. Liver Laceration Residuals The veteran’s liver laceration residuals have been rated under Diagnostic Code 7301. A 10 percent rating is warranted for moderate adhesions with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distention. A 30 percent rating is warranted where there are moderately severe adhesions with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain than are present with severe adhesions. A 50 percent rating requires severe adhesions with definite partial obstruction shown by x-ray study, frequent and prolonged episodes of severe colic distention, nausea or vomiting, following severe peritonitis, a ruptured appendix, a perforated ulcer, or an operation with drainage. Code 7301. Here, the veteran has complained in hearing testimony of an uncomfortable numbness in his right side whenever he engages in strenuous activity. However, he denied having nausea or diarrhea, he has never taken medication for his liver disorder and he stated that he has never been told that he had abnormal results from liver function tests. A September 1995 VA examination included liver function test which were within normal limits, and the examiner noted that the veteran’s liver status was stable. There are no clinical findings or diagnoses of moderately severe adhesions. Indeed, there are no clinical findings or diagnoses of any current liver disability. Regarding the veteran’s attribution of right-side numbness to his lacerated liver, the veteran is certainly capable of providing evidence of symptomatology. As a layperson, however, he is not capable of opining on matters requiring medical knowledge, such as the attribution of symptoms to a medical disorder. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In the absence of at least moderately severe adhesions, an evaluation in excess of 10 percent for liver laceration residuals must be denied. ORDER Entitlement to a disability rating in excess of 40 percent for right chest gunshot wound residuals, with adhesions and a partial resection of the right lower lung lobe is denied. Entitlement to a compensable rating for diaphragm laceration residuals is denied. Entitlement to a disability rating in excess of 10 percent for liver laceration residuals is denied. REMAND Regarding the claims for increased evaluations for scars, it appears that the RO may have mischaracterized the issues in a September 1997 rating decision/supplemental statement of the case. In a June 1992 rating decision the RO denied a compensable evaluation for postoperative scars of the right chest, back and abdomen, collectively. In April 1993, pursuant to a hearing officer’s decision, the RO assigned a 10 percent rating for postoperative scars of the right chest, back and abdomen, collectively. The evaluation was assigned pursuant to Diagnostic Code 7805. In the September 1997 rating decision/supplemental statement of the case, the RO assigned separate evaluations for the three scars at issue. In the supplemental statement of the case, it was noted that [T]he current VA examination indicates [that] the veteran had an entrance wound in the anterior abdomen in the region of the liver, an exit wound in the right paraspinal area in the region of the T12 vertebra, and a thoracotomy scar of the right chest. The exit wound exhibits a defect in the paraspinal muscles in that area. It is uncomfortable to touch the scar. The veteran does not complain about any other scar. The examination to which the RO referred, however, was the September 1995 examination, and not the more current May 1997 which discussed the veteran’s scars. In any event, the RO found (again in the supplemental statement of the case) that because the exit wound was painful, a 10 percent evaluation should be assigned to that wound. In the September 1997 rating decision, the RO recharacterized the postoperative scars of the veteran’s chest, back and abdomen as postoperative residuals of a thoracotomy, 10 percent disabling pursuant to Diagnostic Code 7804; right chest scar, noncompensably disabling, pursuant to Diagnostic Code 7805; and thoracic spine scar, noncompensably disabling, pursuant to Diagnostic Code 7805. Seemingly, the RO intended to assign a 10 percent evaluation for the back scar and noncompensable evaluations for the right chest scar and abdominal scar. In recharacterizing the scars, it is not clear whether the RO inadvertently omitted the abdominal scar. Further, it seems that perhaps, in listing the veteran’s disabilities, the RO confused the scar due to the thoracotomy with the scar of the thoracic spine. There also seems to be some confusion as to the number of scars associated with the veteran’s wounds, and which scars represent the entrance and exit wounds. In light of the obvious confusion concerning the scar issues, a remand to clarify these issues is in order. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1997). The Court has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining medical records to which the veteran has referred and obtaining adequate VA examinations; the Court has also stated that the Board must make a determination as to the adequacy of the record. Littke v. Derwinski, 1 Vet. App. 90 (1990). Fulfillment of the statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991). The veteran should be afforded a VA examination to clarify the number and location of the scars associated with his wounds and the resulting surgeries. The examiner should include for the record color photographs of all such scarring. For the foregoing reasons, the Board finds that additional development is required, and the claim remaining claims are REMANDED for the following actions: 1. The RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him since May 1997 for his service-connected scars and any residuals of his thoracotomy. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, which have not been previously secured. 2. Then, the RO should schedule the veteran for comprehensive VA examination to determine the current severity of all of the veteran’s service-connected scars and all postoperative residuals of the thoracotomy. All indicated tests must be conducted. The claims file must be made available to and reviewed by the examiner prior to the requested study. The examiner should identify all scarring associated with the veteran’s wounds in service, to include identification of the entrance and exit wounds, as well as the scarring associated with his thoracotomy. The examiner should describe any scar tenderness, ulceration and adhesion. The examiner should include color photographs of all scarring associated with the wounds and resulting surgery. The examiner should describe any additional disability associated with his thoracotomy. A complete rationale for any opinion expressed must be provided. 3. Then the RO should review the issues remaining on appeal. The RO should assign ratings for each of the veteran’s service-connected scars as well as for any additional residuals of the veteran’s thoracotomy. The RO should assign ratings for all scars associated with the veteran’s wounds and resulting surgeries. If the issues on appeal remain denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be given an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if appropriate. In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1997) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. S.L. COHN Member, Board of Veterans’ Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to the issue addressed in the remand, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1997). - 2 -