Citation Nr: 1318788 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 07-08 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a combined rating in excess of 30 percent for residuals of pneumothorax. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1956 to September 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the San Diego, California RO. In April 2010, the Board granted an earlier effective date of February 8, 2006 for the assignment of a 20 percent rating for the intercostal neuralgia component of the Veteran's residuals of pneumothorax (and a 30 percent combined rating for such residuals), and remanded the case for additional development. In December 2012, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. REMAND The Veteran seeks an increase in the rating for his service-connected residuals of spontaneous pneumothorax, currently rated 30 percent combined based on a formulation of 20 percent for intercostal neuralgia (rated by analogy under Code 5321 for severe Muscle Group XXI injury) and 10 percent for pneumothorax (under Code 6843 which provides for rating based on pulmonary function impairment). He filed the claim for increase in February 2006, and under legal guidelines the evaluation period begins in February 2005. The Veteran maintains that a higher rating is warranted for nerve and muscle manifestations that exceed (are not encompassed by) the 20 percent rating assigned under Code 5321, as he has sustained substantial damage from multiple surgical procedures and requires medication such as Oxycodone and Amitriptyline; for respiratory manifestations that exceed (are not encompassed by) the 10 percent rating assigned for respiratory function impairment under Code 6843 (as he has labored breathing, and uses oxygen at night due to restricted air intake while sleeping); and for other manifestations not encompassed by either Code, including frequent upper respiratory infections requiring antibiotic treatment and susceptibility to pneumonia requiring periodic inoculation for such, as well as having to limit his activities. In April 2010, the Board remanded the case to the RO, in part to secure a medical advisory opinion as to whether the Veteran's residuals of pneumothorax are manifested by any symptoms not encompassed by the 20 and 10 percent ratings assigned for the disability under Codes 5321 and 6843, respectively, and to identify any such symptoms and (if applicable) suggest any additional or alternative Codes that would be more appropriate for rating the disability. A July 2011 opinion by a VA consulting physician was nonresponsive to the questions posed (the provider indicated he did not have access to the diagnostic criteria, and therefore could not comment as to whether they encompassed all disability shown). Therefore, in December 2012, the Board sought an advisory medical opinion from the VHA (specifically, from a thoracic surgeon) that would respond to the following: (a) Based on the factual evidence of record, and beginning from February 2005, is the Veteran shown at any time to have had any symptoms of pneumothorax residuals that are not encompassed by the schedular criteria for Diagnostic Codes 5321 (for neuralgia rated by analogy to Muscle Group XXI injury) and 6843 (for pneumothorax rated based on impairment of pulmonary function)? (b) If the response to (a) is yes, please identify any such symptoms. (c) Are there any schedular criteria (Diagnostic Codes) that would more appropriately reflect the nature and severity of the Veteran's pneumothorax residuals? Please identify any such Code(s) and explain why they would be more appropriate. (d) Is it likely that the Veteran's intercostal neuralgia is so severe that it causes nocturnal hypoxemia or is there another likely etiology? In January 2013, a VA thoracic surgeon reviewed the claims file and concluded that the Veteran's respiratory symptoms are not due to pneumothorax as there is no evidence of pneumothorax on imaging from 2008 and 2010. The surgeon noted that there are not any more recent studies demonstrating it. The surgeon went on to state that she was unable to assess severity of intercostal neuralgia from the records. The surgeon added that a specialist in pain management may be better equipped to assess this aspect and provide further guidance in Code selection. The physician noted that intercostal neuralgia is likely related to one operation, which the Veteran underwent to treat right-sided pneumothorax in 2000; however, the physician stated that nocturnal hypoxemia is likely due to the Veteran's diagnosis of obstructive sleep apnea for which he is instructed to use CPAP with supplemental oxygen at night time. The Board finds that the further development suggested by the VHA expert is needed for proper consideration of the matter on appeal. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for the Veteran's record to be forwarded to a specialist in pain management. The entire record (to include the claims file with this remand and any records in Virtual VA) must be reviewed by the specialist. Based on review of the record, the specialist must provide opinions that respond to the following: (a) Based on the factual evidence of record, and beginning from February 2005, is the Veteran shown at any time to have any symptoms of pneumothorax residuals that are not encompassed by the schedular criteria for Diagnostic Codes 5321 (for neuralgia rated by analogy to Muscle Group XXI injury) and 6843 (for pneumothorax rated based on impairment of pulmonary function)? (b) If the response to (a) is yes, please identify any such symptoms. (c) Are there any schedular criteria (Diagnostic Codes) that would more appropriately reflect the nature and severity of the Veteran's pneumothorax residuals? Please identify any such Code(s) and explain why they would be more appropriate. (d) Is it likely that the Veteran's intercostal neuralgia is so severe that it causes nocturnal hypoxemia or is there another likely etiology? The specialist must explain the rationale for all opinions, citing to supporting clinical data, as appropriate. If the specialist determines that further examination of the Veteran is necessary to provide any of the requested opinions, then such examination should be scheduled. 2. The RO should ensure that all of the development sought is completed, and then review the record and readjudicate the claim. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This 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) (2012).