Citation Nr: 0509370 Decision Date: 03/29/05 Archive Date: 04/07/05 DOCKET NO. 95-03 643 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUE Entitlement to an increased rating for residuals of a spontaneous pneumothorax, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from August 1959 to August 1963. This appeal to the Board of Veterans Appeals (Board) originally arose from an August 1994 rating action that denied a rating in excess of 10 percent for residuals of a spontaneous pneumothorax. A Notice of Disagreement was received in December 1994, and a Statement of the Case (SOC) was issued subsequently that month. A Substantive Appeal was received in January 1995, and a Supplemental SOC (SSOC) was issued in February 1995. In April 1995, the veteran testified at a hearing before a hearing officer at the RO; a transcript of the hearing is of record. A SSOC was issued in June 1995. In May 1996, the veteran at the RO testified at a Board videoconference hearing before the undersigned Veterans Law Judge in Washington, D.C.; a transcript of the hearing is of record. In September 1996, the Board remanded the matter on appeal to the RO for further development of the evidence and for due process development. This appeal also originally arose from a March 1997 SSOC wherein the RO denied service connection for bullous emphysema, and continued the denial of a rating in excess of 10 percent for residuals of a spontaneous pneumothorax. A Substantive Appeal with respect to the denial of service connection was received in June 1997. A SSOC on both issues was issued in April 1998. By decision of May 1999, the Board denied service connection for bullous emphysema, as well as a rating in excess of 10 percent for residuals of a spontaneous pneumothorax. In January 2001, counsel for the VA Secretary filed a unilateral motion with the United States Court of Appeals for Veterans Claims (Court) to vacate and remand the May 1999 Board decision. By Order of April 2001, the Court granted the motion, vacating the May 1999 Board decision, and remanding these matters to the Board for further action. By decision of May 2002, the Board again denied service connection for bullous emphysema, as well as a rating in excess of 10 percent for residuals of a spontaneous pneumothorax. In August 2002, the veteran filed a Motion for Reconsideration of the May 2002 Board decision. In October 2002, a Deputy Vice-Chairman of the Board denied the veteran's Motion for Reconsideration under the provisions of 38 U.S.C.A. §§ 7103 and 7104 (West 2002) and 38 C.F.R. §§ 20.1000, 20.1001 (2002). The veteran again appealed to the Court. In June 2003, the appellant and the VA Secretary filed a Joint Motion with the Court to vacate and remand the May 2002 Board decision. By Order later in June 2003, the Court granted the Joint Motion, vacating the May 2002 Board decision, and remanding the matters on appeal to the Board for further action. In January 2004, the Board remanded these matters to the RO for further development of the evidence and for due process development. By rating action of December 2004, the RO granted service connection for bullous emphysema; this constitutes a full grant of the benefit sought on appeal with respect to that issue. A SSOC was issued in January 2005, reflecting the RO's continued denial of a rating in excess of 10 percent for residuals of a spontaneous pneumothorax (the only matter remaining on appeal). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Recent medical records have primarily attributed the veteran's respiratory impairment to his chronic smoking and residual service-connected emphysema; there is no medical evidence suggesting that he experiences more than mild dyspnea on exertion as a result of his service-connected pneumothorax, or that pneumothorax has recurred. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for postoperative residuals of a spontaneous pneumothorax have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321 and Part 4, including §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Codes 6814-6602 (1996) and 6843 (1997-2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim remaining on appeal has been accomplished. Through the March 1994 RO letters, the August 1994 rating action, the December 1994 SOC, the January 1995 rating action, the February 1995 SSOC, the February, March, and April 1995 RO letters, the June 1995 SSOC, the August 1995 and February, April, and May 1996 RO letters, the March 1997 SSOC, the September 1997 RO letter, the April 1998 SSOC, the October 1998 RO letter, the February and June 2004 RO letters, the January 2005 SSOC, and the February 2005 RO letter, the veteran and his representative were variously notified of the law and regulations governing entitlement to the benefit sought on appeal, the evidence that would substantiate his claim, and the evidence that had been considered in connection with his appeal. Thus, the Board finds that the veteran has received sufficient notice of the information and evidence needed to support his claim, and has been provided ample opportunity to submit information and evidence. Additionally, the SOC, SSOCs, and the February 2004 RO letter variously informed the veteran of what the evidence had to show to establish entitlement to the benefit he sought; what information or evidence VA still needed from him; what evidence VA had retrieved and considered in his claim; what evidence he had to furnish; what he had to do to obtain assistance from VA in connection with his appeal; and that VA would make reasonable efforts to help him get evidence necessary to support his claim, such as medical records (including private medical records), if he gave it enough information about such records so that it could request them from the person or agency that had them. In addition, the latter 2004 RO letter specifically informed the appellant of the VCAA's requirements, and notified him that he could help with his claim by informing VA of any additional information or evidence that he wanted it to try to obtain for him, where to send additional evidence or information concerning his appeal, and where he could request assistance if needed. The February 2004 RO letter specifically notified the veteran to furnish any evidence or information that he had pertaining to his appeal. Accordingly, the Board finds that the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and what evidence will be retrieved by VA has been met. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board points out that, in the recent decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that proper VCAA notice should notify a veteran of: (1) the evidence that is needed to substantiate a claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by a claimant; and (4) a request by VA that a claimant provide any evidence in his possession that pertains to a claim(s). As indicated above, all four notice requirements have been met in this case. However, Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," the VA Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. In the case now before the Board, documents strictly meeting the VCAA's notice requirements were not provided, nor could they have been provided, to the veteran prior to the 1994 rating action on appeal, inasmuch as the VCAA was not enacted until late 2000. However, the Board finds that any lack of full, pre- adjudication notice in this case does not prejudice the veteran in any way. As indicated above, the rating actions, numerous RO letters, SOC, and SSOCs issued between 1994 and 2005 have repeatedly explained to the veteran what was needed to substantiate his claim. As a result of RO development, the Board's September 1996 and January 2004 Remands, and the Court's April 2001 and June 2003 Orders, comprehensive documentation, identified below, has been associated with the claims file and considered in evaluating the veteran's appeal. The RO most recently readjudicated the veteran's claim on the merits in January 2005 on the basis of all the evidence of record, as reflected in the SSOC. Additionally, the Board finds that all necessary development on the claim currently under consideration has been accomplished. The RO, on its own initiative as well as pursuant to the Board Remands and Court Orders, has made reasonable and appropriate efforts to assist the appellant in obtaining evidence necessary to substantiate his claim, to include obtaining extensive VA and private medical records and examination reports up to 2004. The veteran was most recently comprehensively examined by VA in October 2004. As noted above, the veteran testified during a RO hearing in April 1995, and a Board videoconference hearing in May 1996. The veteran has submitted copies of private and VA medical records that have been associated with his claims file. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Hence, the Board finds that any failure on the part of VA in not fulfilling any VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2004). Under these circumstances, the Board finds that the veteran is not prejudiced by adjudication of the claim now under consideration, at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis Historically, service connection for residuals of a spontaneous pneumothorax was granted by rating action of April 1966 and a noncompensable rating was assigned from November 2, 1965 under Diagnostic Code (DC) 6814. By rating action of June 1980, the RO assigned an increased rating, to 10 percent, from April 22, 1980 under DCs 6814-6602. By rating action of December 2004, service connection was granted for bullous emphysema, and a 100 percent rating was assigned from February 28, 1994 under DC 6604; a 10 percent rating for residuals of spontaneous pneumothorax was continued under DC 6843. Disability evaluations are determined by comparing the symptoms a veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher 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. When making determinations as to the appropriate rating to be assigned, VA must take into account the veteran's entire medical history and circumstances. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, where, as here, the question is whether an increased rating is warrant, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Effective October 7, 1996, during the pendency of this appeal, VA amended the criteria for rating respiratory disabilities. As there is no indication that the revised criteria are intended to have retroactive effect, the Board has the duty to adjudicate the claim only under the former rating criteria for any period prior to the effective date of the new DCs, and to consider the revised rating criteria for the period beginning on the effective date of the new provisions. See Wanner v, Principi, 17 Vet. App. 4, 9 (2003); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). See also VAOPGCPREC 3-2000 (2000) and 7-2003 (2003). The RO notified the veteran of the change in criteria, and of its effect on his claim, in the March 1997 SSOC. As the RO has considered the former and revised criteria, there is no due process bar to the Board doing likewise. Under the former applicable rating criteria, residuals of a spontaneous pneumothorax are evaluated under 38 C.F.R. § 4.97, DC 6814 and rated analogous to bronchial asthma under DC 6602. See 38 C.F.R. § 4.20. A 10 percent rating is warranted when there is evidence of mild respiratory impairment, manifested by paroxysms of asthmatic type breathing (such as high-pitched expiratory wheezing and dyspnea) that occurs several times a year, with no clinical findings between attacks. A 30 percent rating requires evidence of moderate respiratory impairment, manifested by asthmatic attacks that occur rather frequently (separated by only 10-14 day intervals), with moderate dyspnea on exertion between attacks. A 60 percent rating requires evidence of severe respiratory impairment, manifested by frequent attacks of asthma (one or more per week), marked dyspnea on exertion between attacks, only temporary relief by medication, and a preclusion of more than light manual labor. A 100 percent rating requires evidence of pronounced respiratory impairment, manifested by very frequent asthma attacks with severe dyspnea on even slight exertion between attacks, and with marked loss of weight or other evidence of severe impairment of health. 38 C.F.R. § 4.97, DC 6602 (as in effect prior to October 7, 1996). Under the revised applicable rating criteria effective on and after October 7, 1996, residuals of a spontaneous pneumothorax are evaluated according to the general rating formula for restrictive lung disease. See 38 C.F.R. § 4.97, DC 6843. A 10 percent rating is warranted where forced expiratory volume in one second (FEV-1) is 71- to 80- percent predicted; or if the FEV-1 to forced vital capacity (FVC) ratio is 71 to 80 percent; or if diffusion capacity of the lung for carbon monoxide (DLCO) by the single breath method (SB) is 66- to 80-percent predicted. A 30 percent rating requires FEV-1 of 56- to 70-percent predicted; or FEV- 1/FVC of 56 to 70 percent; or DLCO(SB) of 56- to 65-percent predicted. A 60 percent rating requires 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). A 100 percent rating requires FEV-1 less than 40 percent predicted; or FEV-1/FVC less than 40 percent; or DLCO(SB) of less than 40-percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiorespiratory limitation); or cor pulmonale (right- sided heart failure); or right ventricular hypertrophy; or pulmonary hypertension (shown by echo or cardiac catheterization); or an episode or episodes of acute respiratory failure; or oxygen therapy. 38 C.F.R. § 4.97, DC 6843. Initially, the Board finds that the severity of the veteran's residuals of a spontaneous pneumothorax does not meet the schedular requirements for a 30 percent rating under the former rating criteria. Although he has repeatedly complained of experiencing increasing shortness of breath (i.e., dyspnea) over the course of the last several years with even minimal exertion, and occasional pain in his chest, the vast majority of his respiratory impairment has been attributed to his chronic obstructive pulmonary disease (COPD, emphysema) caused by his chronic smoking, and not to his service-connected residuals of a spontaneous pneumothorax. (The Board notes that the veteran is service connected for bullous emphysema, and is compensated therefor at a 100 percent rate.) On March 1991 VA examination, the veteran's moderate obstructive lung defect found on pulmonary function tests (PFTs) was attributable to bullous emphysema, and not to the service-connected pneumothorax, as chest X- rays showed no signs of recurrence of pneumothorax. There also was no evidence of shortness of breath at rest, or wheezing or rales in the lungs, and it was indicated that he had normal breath sounds bilaterally. In fact, there has been no evidence of recurrence since approximately 1980. Most recently in September 2003, S. Berry, M.D., noted that he last saw the veteran in July 2001 and that he had not had recurrent episodes of pneumothorax for several years. Similar findings were noted on VA examination of April 1994 and January 1995, and in the May 1995 supplemental opinion. The examiners again indicated that the veteran's shortness of breath and associated respiratory impairment (reduction in PFT) was primarily, if not entirely, related to his chronic smoking and severe COPD (emphysema), and not to his service- connected pneumothorax. It also was indicated that the lungs were clear to auscultation. On January 1995 VA examination, it was indicated that the veteran's service-connected spontaneous pneumothorax was not causing any significant degree of respiratory impairment. The results of VA examinations in October 1996, November 1999, and March 2000, as well as September 2003 statements by Dr. Berry and C. Bash, M.D., and the October 2004 VA examination are consistent with those of the earlier examinations, to the extent that the veteran's respiratory impairment is attributed to his chronic smoking and COPD (emphysema). An October 2000 breathing study by Dr. Berry indicated moderate obstructive ventilatory impairment reflecting the presence of significant emphysema. The October 2004 VA examination showed a severe emphysematous- type disability picture. The veteran has not submitted any medical evidence to refute the conclusions and opinions of the various examiners concerning the severity and etiology of his respiratory status. Thus, an increased rating for residuals of a spontaneous pneumothorax clearly is not warranted under the former rating criteria. The revised rating criteria effective on and after October 7, 1996 apply a far more rigid and objective standard of determining the severity of the residuals of a spontaneous pneumothorax, by considering the quantitative results of PFTs and related empirical studies and comparing the values obtained with those required for a higher rating. The results of PFTs and related clinical studies that were conducted on October 1996 VA examination showed FEV-1 81 percent of predicted, which was described as normal, as was the FVC 102 percent of predicted. Although the DLCO was indicated as 49 percent, the decrease was attributed to the bullous changes caused by the emphysema and smoking. The flow rates that were obtained on January 1997 VA examination were slightly diminished compared to those obtained in October 1996 (FEV-1 was 66 percent of predicted, and FVC 72 percent), but the examiner indicated that the results of the October 1996 examination were probably more accurate, and, for the reasons discussed above, they do not provide a basis for assigning a rating higher than 10 percent. The results on November 1999 VA examination revealed variable findings with slight improvement, with FEV-1 69 percent of predicted, and FVC 75 percent of predicted, and deterioration shown by the DLCO at 29 percent of predicted. In March 2000, FEV-1 was 65 percent, FVC was 75 percent, and DLCO was 27 percent of predicted. In October 2004, FEV-1 was 52 percent, FVC was 61 percent, and DLCO was 37 percent of predicted. As noted above, while these findings indicate that veteran's respiratory disability has progressed in severity, the evidence does not provide any basis to attribute the increase in severity to the service-connected spontaneous pneumothorax. Since the veteran does not meet the criteria for at least the next higher rating of 30 percent for his service- connected spontaneous pneumothorax under either the former or revised rating criteria, it logically follows that he likewise does not meet the criteria for 60 or 100 percent ratings. The above discussion is based on application of pertinent provisions of VA's Schedule for Rating Disabilities. Additionally, the Board finds that there is no indication that the schedular criteria are inadequate to evaluate the veteran's spontaneous pneumothorax. In this regard, the Board notes that there has been no showing that that service- connected disability has caused marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), or necessitated frequent periods of hospitalization, or that it otherwise has rendered impracticable the application of the regular schedular standards. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A rating in excess of 10 percent for residuals of a spontaneous pneumothorax is denied. ____________________________________________ JACQUELINE E.MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs