Citation Nr: 0813915 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 06-03 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a disability rating in excess of 60 percent for service-connected bronchial asthma with chronic obstructive pulmonary disease (COPD). 2. Entitlement to a disability rating in excess of 10 percent for service-connected peripheral neuropathy of the right median nerve secondary to accidental laceration of the wrist. 3. Entitlement to a compensable disability rating for service-connected residuals of a shell fragment wound of the chest. 4. Entitlement to a compensable disability rating for service-connected residual of shell fragment wound scar of the nose and neck. 5. Entitlement to an effective date earlier than July 1, 2004, for the grant of individual unemployability. ATTORNEY FOR THE BOARD J. Meawad, Associate Counsel INTRODUCTION The veteran served on active duty from January 1963 to February 1967, August 1968 to September 1970, and June 1971 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. FINDINGS OF FACT 1. The veteran's asthma is not manifested by FEV-1 of less than 40, FEV-1/FVC of less than 40; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno- suppressive medications. 2. The veteran's peripheral neuropathy of the right median nerve is not characterized by moderate incomplete paralysis. 3. The veteran's residuals of a shell fragment wound of the chest are not manifested by any observable symptoms, including any scar with limitation of function. 4. The veteran's residual of shell fragment wound scar of the nose and neck is manifested by a superficial scar measuring 4 mm by 1 mm with minimal depigmentation; the scar is not manifested by any characteristic of disfigurement. 5. In October 2002, the RO denied the veteran's claim for entitlement to individual unemployability; the veteran did not submit a notice of disagreement within one year of the notice of that decision. 6. On July 1, 2004, VA received a claim for TDIU benefits. 7. In December 2004, the RO granted entitlement to TDIU benefits, effective July 1, 2004. 8. There was no claim, formal or informal, for TDIU benefits filed after October 28, 2002, and before July 1, 2004. 9. During the one-year period preceding July 1, 2004, there is no medical evidence to establish that the veteran's service-connected disabilities prevented him from a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 60 percent for bronchial asthma with COPD are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6602 (2007). 2. The criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the right median nerve have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.31, 4.124a, Diagnostic Code 8515 (2007). 3. The criteria for a compensable rating for residuals of a shell fragment wound of the chest have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2007). 4. The criteria for a compensable rating for residual of shell fragment wound scar of the nose and neck have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7800 (2007). 5. The criteria for an effective date earlier than July 1, 2004, for the award of TDIU benefits are not met. 38 U.S.C.A. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.157, 3.341, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased rating Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3. 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. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A. Bronchial asthma with COPD The veteran's asthma is currently assigned a 60 percent disability rating pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6602. Under those criteria, a 60 percent evaluation requires FEV-1 of 40-55 percent predicted; or, FEV-1/FVC of 40-55 percent; or, at least monthly visits to a physician for required care of exacerbations; or, intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted for bronchial asthma with an FEV-1 less than 40 percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno- suppressive medications. Following a careful review of the evidence, the Board finds that the preponderance of the evidence does not show that a rating in excess of 60 percent is warranted. Results of pulmonary function testing performed in conjunction with the September 2004 VA examination did not meet the criteria for a 100 percent rating. The pulmonary function test results were FEV-1 of 45 percent predicted and FEV-1/FVC of 47 percent, which do not satisfy the criteria for 100 percent, which require FEV-1 of less than 40 percent predicted; or, FEV- 1/FVC of less than 40 percent. In addition, although the record shows that the veteran's asthma requires daily drug therapy, including theophylline, flunisolide inhaler, salmeterol inhaler, and albuterol inhaler, there is no evidence his daily therapy includes any systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Furthermore, the medical records do show that the veteran received frequent treatment for this asthma; however, more than one attack per week with episodes of respiratory failure has not been shown. Therefore, a higher disability rating for the veteran's bronchial asthma with COPD is not warranted. B. Peripheral neuropathy of the right median nerve The veteran's service-connected peripheral neuropathy of the right median nerve is currently assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8515. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. Complete paralysis of the median nerve produces inclination of the hand to the ulnar side with the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, and the thumb in the plane of the hand (ape hand); incomplete and defective pronation of the hand with the absence of flexion of the index finger, feeble flexion of the middle finger, inability to make a fist, and index and middle fingers that remain extended; inability to flex the distal phalanx of the thumb with defective opposition and abduction of the thumb at right angles to the palm; weakened flexion of the wrist; and pain with trophic disturbances. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Disability ratings for diseases of the peripheral nerves under Diagnostic Code 8515 are based on relative loss of function of the involved extremity with attention to the site and character of the injury, the relative impairment of motor function, trophic changes, or sensory disturbances. See 38 C.F.R. § 4.120. Under Diagnostic Code 8515, a 10 percent disability rating is warranted for the major upper extremity for mild incomplete paralysis of the median nerve, a 30 percent disability rating is warranted for the major upper extremity for moderate incomplete paralysis of the median nerve, a 50 percent disability rating is warranted for the major upper extremity for severe incomplete paralysis of the median nerve, and a 70 percent disability rating is warranted for the major upper extremity for complete paralysis of the median nerve. Because the veteran is right-hand dominant, his disorder is rated as impairment of the major upper extremity. 38 C.F.R. § 4.69. Following a careful review of the evidence, the Board finds that the preponderance of the evidence does not show that a rating in excess of 10 percent is warranted. During the September 2004 VA examination, the veteran complained of occasionally dropping things, but was able to make a full fist. Physical examination of the right hand showed that thumb and fingertip mobility was well preserved. Fists were complete bilaterally and grip strength was 4 out of 5 on the right. He did have some atrophy on the right thenar eminence and there was positive tinnel sign at the right wrist. Neurological examination revealed deep tendon reflexes to be intact. The Board finds that the medical evidence does not demonstrate incomplete paralysis that is moderate in severity. Accordingly, a disability rating in excess of 10 percent is not warranted for the veteran's peripheral neuropathy of the right median nerve. The Board also considered Diagnostic Code 5215 as the VA examination revealed some limitation of motion of the veteran's right wrist. However, the medical evidence does not support additional disability rating under this code as the veteran's dorsiflexion was limited to 20 degrees and palmar flexion was 40 degrees. In order to warrant a compensable rating under Diagnostic Code 5215, dorsiflexion must be less than 15 degrees or palmar flexion limited in line with the forearm. Therefore, a higher rating under this code is likewise not warranted. C. Residuals of a shell fragment wound of the chest The veteran's service connected scar disability was rated as noncompensable under Diagnostic Code 7805. Under the Diagnostic Code 7805, scars may be evaluated on the basis of any related limitation of function of the body part that they affect. 38 C.F.R. § 4.118, Diagnostic Code 7805. Based on the findings of record, the Board concludes that the preponderance of the evidence is against the assignment of a compensable evaluation for the veteran's service-connected scar of the chest under Diagnostic Code 7805 as the veteran's scar does not limit the function of any body parts. During the September 2004 VA medical examination, the veteran reported that the scar on the chest healed and he had no local pain at the site of the fragmentary wounds. The examiner stated that he could not find any scar in the abdomen representing a penetrating missile or fragment injury. As there is no evidence of a scar or any residual from a shell fragment wound, a higher disability rating is not warranted under this code or any other code regarding scars. D. Residual of shell fragment wound scar of the nose and neck The service-connected residuals of shell fragment wound scar of the nose and neck are evaluated as noncompensable under Diagnostic Code 7800. 38 C.F.R. § 4.118. Diagnostic Code 7800, pertaining to disfigurement of the head, face, or neck, provides that an evaluation of 10 percent is warranted for disability of the skin of the head, face, or neck with one characteristic of disfigurement. An evaluation of 30 percent requires disability of the skin of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears, (auricles), cheeks, lips) or with two or three characteristics of disfigurement. A 50 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent rating is provided when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. Id. Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are as follows: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at widest part. Surface contour of scar elevated or depressed on palpation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Following a careful review of the record, the Board finds that a compensable rating is not warranted. During the September 2004 VA medical examination, the veteran reported that he had no local pain at the site of the fragmentary wounds and denied having epistaxis or problems with nasal septal deviation. No nasal surgery was ever performed. Physical examination revealed a very superficial scar measuring 4 mm by 1 mm lying obliquely on the bridge of the nose that was minimally depigmented with no signs of instability. The scar was not raised or depressed and there was no tissue loss. The examiner noted that the scar was not grossly disfiguring and was rather difficult to see at first glance. As the facial scar is not disfiguring and there is no evidence of any other residual from the facial shell fragment wound, a higher disability rating is not warranted. E. Conclusion For the reasons stated above, the preponderance of the evidence is against a higher rating higher for the veteran's bronchial asthma with COPD, peripheral neuropathy of the right median nerve secondary to accidental laceration of the wrist, residuals of a shell fragment wound of the chest, and residual of shell fragment wound scar of the nose and neck. Thus, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In deciding the veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The Board does not find evidence that the veteran's bronchial asthma with COPD, peripheral neuropathy of the right median nerve secondary to accidental laceration of the wrist, residuals of a shell fragment wound of the chest, or residual of shell fragment wound scar of the nose and neck should be increased for any separate periods based on the facts found during the whole appeal period. The evidence of record in connection with these claims supports the conclusion that the veteran is not entitled to additional increased compensation during any time within the appeal period. Earlier effective date A December 2004 rating decision awarded TDIU, effective July 1, 2004. The veteran claims he is entitled to an earlier effective date for this grant of TDIU. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Moreover, such impairment must be due to service-connected disabilities. The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within 1 year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). VA recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). The procedural history in this case shows that the veteran's initial claim of entitlement to TDIU was received by VA on August 19, 2002. The claim was considered and denied by the RO in October 2002. Notice of that decision and his appellate rights was sent to the veteran that same month; he did not appeal this decision. The veteran submitted an application for increased compensation based on unemployability on July 1, 2004. In December 2004, the RO granted TDIU and assigned an effective date of July 1, 2004. In March 2005, the veteran disagreed with the effective date assigned for the grant of TDIU. Because the veteran did not appeal the October 2002 RO rating decision, that decision is final. Under these circumstances, the Board is precluded from assigning an effective date earlier than October 2002. See 38 C.F.R. § 3.400(o). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. The veteran filed a claim for TDIU benefits on July 1, 2004. During the period between October 2002, and the receipt of the veteran's claims for TDIU benefits in July 2004, the evidence reflects no request for TDIU in any filings. Hence, there is not a single document of record, prior to July 1, 2004, that may be reasonably construed as a claim for TDIU benefits. 38 C.F.R. §§ 3.151(a), 3.155(a). Based on the foregoing, the Board finds that the date of receipt of the veteran's current claim for TDIU is July 1, 2004. Under 38 C.F.R. § 3.400(0)(2), it is necessary to determine whether, sometime between July 1, 2003, and July 1, 2004, the veteran's inability to follow a substantially gainful occupation became factually ascertainable. After a review of the evidence of record, the Board finds that, for the one year period prior to receipt of the veteran's TDIU claim on July 1, 2004, it is not factually ascertainable that the veteran was unable to obtain or maintain substantially gainful employment due to service- connected disabilities. Indeed, none of the medical evidence during this period contains any competent findings that the veteran was unable to follow a substantially gainful occupation solely as a result of service-connected disabilities. During this period, the service-connected disabilities were bronchial asthma with COPD, rated as 60 percent disabling; peripheral neuropathy of the right median nerve secondary to accidental laceration of the wrist, rated as 10 percent disabling; residual of shell fragment wound scar of the nose and neck, rated as noncompensable; and residuals of a shell fragment wound of the chest, rated as noncompensable. The first evidence of record which showed that the veteran's unemployment was due to these disabilities was the September 14, 2004 VA examination. Prior to that opinion, the veteran's unemployment had been attributed to his nonservice-connected incontinence. See September 2002 VA examination. The veteran was granted TDIU effective July 1, 2004, the date of claim. No other evidence of record demonstrates entitlement to TDIU prior to that date. In sum, the date of claim here is July 1, 2004. The date upon which it is first factually ascertainable that entitlement to a TDIU arose is September 14, 2004. As the later of these dates controls, there is no basis for an effective date prior to the effective date of July 1, 2004 that was assigned. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in August 2004. Additional notice was sent in March 2006. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim for TDIU and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. None of the notice letters, however, fully discussed the criteria for an increased rating; thus, the duty to notify has not been satisfied with respect to VA's duty to notify him of the information and evidence necessary to substantiate the claims for an increased rating. See Quartuccio, 16 Vet. App. at 183; Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, the Board finds that any content-related notice errors did not affect the essential fairness of the adjudication of the claims decided herein. The August 2004 letter from VA to the veteran stated that to establish entitlement to an increased rating, he must show that his conditions had worsened and explained VA's responsibilities in obtaining evidence. The December 2004 RO decision explained the criteria for the next higher ratings available for the increased rating claims under the applicable diagnostic codes. The November 2005 statement of the case provided the veteran with the applicable regulations relating to disability ratings for the claims on appeal and for the effective date claim. In addition, the veteran was represented for most of the appeal by an attorney. The Board finds that a reasonable person would have understood from the information that VA provided to the veteran what was necessary to substantiate his increased rating and effective date claims. The veteran's accredited representative at the time submitted a written argument in March 2003 which demonstrated actual knowledge of the legal requirements of the claims. The representative is presumed to have basic knowledge of the applicable criteria for the veteran's claim and to have communicated this information to the claimant. See Overton v. Nicholson, 20 Vet. App. 427, 438-439. The veteran therefore had a meaningful opportunity to participate in the adjudication of his claims such that essential fairness of the adjudication was not affected. The Board finds that no prejudice to the veteran will result from proceeding with adjudication without additional notice or process. See Vazquez-Flores, 22 Vet. App. at 37 (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)). VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, and obtained medical opinions as to the etiology and severity of disabilities. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. ORDER Entitlement to a disability rating in excess of 60 percent for service-connected bronchial asthma with COPD is denied. Entitlement to a disability rating in excess of 10 percent for service-connected peripheral neuropathy of the right median nerve secondary to accidental laceration of the wrist is denied. Entitlement to a compensable disability rating for service- connected residuals of a shell fragment wound of the chest is denied. Entitlement to a compensable disability rating for service- connected residual of shell fragment wound scar of the nose and neck is denied. Entitlement to an effective date earlier than July 1, 2004, for the grant of individual unemployability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs