Citation Nr: 1321980 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-50 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased rating for service-connected limited excursion of the diaphragm, right chest, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1947 to April 1950, and from June 1950 to August 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of a Department of Veterans (VA) Regional Office (RO). The Veteran's notice of disagreement was received in March 2009. A statement of the case was issued in October 2009, and a substantive appeal was received in December 2009. The Veteran did not appear for a March 2013 hearing which had been scheduled at his request. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012); 38 U.S.C.A. § 7107(a)(2) (West 2002). A total rating based on individual unemployability was granted by rating decision in September 2012. The Board also notes that service connection has been established for a right rectus scar (rated 10 percent) and a scar at the anterior tip of the 10th rib (rated noncompensable). These matters are not in appellate status and the following decision of the Board is limited to the question of the proper rating for the Veteran's service-connected limited excursion of the diaphragm, right chest. FINDING OF FACT The Veteran's service-connected limited excursion of the diaphragm, right chest, is manifested pain and discomfort on exertion with some limitation of excursion of the diaphragm and lower chest expansion; pulmonary function tests show FEV-1 of 81 percent predicted and FEV-FVC of 79 percent predicted; there is no involvement of shoulder girdle muscles. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for Veteran's service-connected limited excursion of the diaphragm, right chest, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.10, 4.97, Diagnostic Code 6843(2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a 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); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 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/Hartman 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). In this case, a timely letter sent in July 2008 provided the notice contemplated by Dingess. The Veteran was provided with notice of the types of evidence necessary to establish a disability rating and an effective date for any rating that may be granted, and this letter explained how VA determines disability ratings and effective dates. The RO provided the Veteran with additional notice in April 2009 which was otherwise compliant with Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained pertinent treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran VA examinations in January 2010 and October 2012. All known and available treatment records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Legal Criteria, Factual Background, Analysis The Board notes that is has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The record shows the Veteran suffered a missile wound penetrating his abdomen and liver with no artery or nerve damage. A foreign body was removed in March 1951. Residuals of a limited diaphragmatic excursion were noted. The Veteran was granted service connection for this disability and a 20 percent disability rating was assigned. The present appeal involves the Veteran's claim that the severity of this disability warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The record reflects that the Veteran's service-connected limited excursion of the diaphragm, right chest was rated 20 percent disabling under the criteria of Diagnostic Code 6818, which provided a 20 percent rating evaluating residuals of injuries to the pleural cavity that resulted in a moderate impairment. However, in 1996, the criteria for rating pulmonary diseases generally were revised and updated and, as a part of this process, Diagnostic Code 6818 was eliminated. See 61 Fed. Reg. 46728 (1996). The current increased rating claim was submitted by the Veteran in June 2008 and, thus, the amended criteria for rating pulmonary diseases will be applied to the Veteran's claim. In this regard, the Board finds that the Veteran's disability is most appropriately rated under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6843, which pertains to traumatic chest wall defects. The General Rating Formula for Restrictive Lung Disease (Diagnostic Codes 6840 through 6845) provides for a 100 percent rating for findings that show Forced Expiratory Volume (FEV-1) less than 40 percent of predicted value; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); episode(s) of acute respiratory failure; or the need for outpatient oxygen therapy. 38 C.F.R. § 4.97. A 60 percent rating is assigned for 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). Id. A 30 percent rating is assigned for FEV-1 of 56- to 70- percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted. Id. A 10 percent rating contemplated FEV-1 of 71- to 80- percent predicted, or; FEV-1/FVC of 71 to 80 percent or; DLCO (SB) 66- to 80-percent predicted. Id. Note (1) following DC 6843 provides that a 100 percent rating shall be assigned for pleurisy with empyema, with or without pleurocutaneous fistula, until resolved. Note (2) following DC 6843 provides that following spontaneous episodes of pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall continue for three months form the first day of the month after hospital discharge. Note (3) following DC 6843 provides that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales of some limitation of excursion of diaphragm or of lower chest expansion shall be rated as least 20 percent disabling. Disabling injuries of shoulder girdle muscles (Groups I to IV) shall be separately rated and combined with ratings for respiratory involvement. Involvement of Muscle Group XXI (DC 5321), however, will not be separately rated. Post-bronchodilator studies are required when pulmonary function testing (PFT) are conducted for disability evaluation purposes, except when the results of pre- bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96. The Veteran was afforded a VA examination in January 2010. At that time he reported intermittent pain 10 times a month lasting for 1 to 2 hours each time without the pain traveling anywhere. The pain was described as a crampy, crushing, sharp pain on the right lower anterior chest wall measuring 5 to 8 on a scale of 10, exacerbated by physical activity, or it just comes by itself. The Veteran reported that he has to rest and for severe pain he takes hydrocodone, acetaminophen. He also reported that if he sits for more than half an hour, the pain can be very unbearable and he has to lie down for awhile, and is associated with feeling fatigued easier than normal with his pain. The Veteran denied any other complications from the muscle injury. He stated he was unable to do gardening, any strenuous activity like boxing, and cannot sit for long time without pain. He stated that he has occasional cough with thick yellowish sputum. There were no reported asthma attacks. There was no reported infection from the respiratory condition, respiratory failure, or treatment for respiratory condition. Examination of the lungs revealed bilateral symmetrical breath sounds, without evidence of wheezing, rhonchi or rales. The expiratory phase is within normal limits. The examiner reported that a pulmonary function tests performed this date were normal. FEV-1 of 82 percent was predicted and FEV-1/FVC of 79 percent was predicted. VA treatment records show a history of hypertension, coronary artery disease, and hyperlipidemia. In October 2011 the Veteran sought treatment in the emergency room for shortness of breath and dyspnea on exertion (DOE) experienced for two weeks. The Veteran complained of shortness of breath/DOE at rest and decreased exercise tolerance with DOE after 1 to 2 blocks. He also complained of mild chest pressure over the cardiac apex which lasted a few days without alleviating or exacerbating symptoms. He denied cough, worsening edema, orthopnea, PND, or abdominal pain. Following discharge, the Veteran was seen by cardiology for shortness of breath. The Veteran complained of shortness of breath with walking short distances, denied orthopnea, edema, PND, and dizziness. Tests revealed coronary artery disease, ischemic cardiomyopathy, hypertension, and dyslipidemia. In November 2011, the Veteran was seen in the cardiology clinic to evaluate stent patency since he was having shortness of breath, however, prior to the procedure, the Veteran stated he did not have shortness of breath and the procedure was canceled. The Veteran further stated he was able to walk 4 blocks every morning for his coffee and can walk up and down 20 stairs without any major complaints of shortness of breath or chest pain. In March 2012, the Veteran was seen in the emergency room complaining of shortness of breath for 2 weeks, fatigue, cough, severe dyspnea, wheezing, and moaning with each breath. Treatments notes from the Veteran's admission revealed that the Veteran was seen in January in the cardiology clinic and stated that he was feeling well with DOE after six blocks. Tests revealed exacerbation of acute and chronic congestive heart failure. At no time were any of the Veteran's symptoms or complaints related to his service-connected limited excursion of the diaphragm, right chest. In October 2012, the Veteran was afforded another VA examination. The Veteran reported right anterior lower chest pain when lying on his right side, as well as difficulty taking deep breaths due to right anterior lower chest pain. The examiner noted that the Veteran did not take any medications for his respiratory condition. No asthma attacks or episodes of respiratory failure were reported. It was noted the Veteran had pneumothorax which resulted in hospitalization in March 1951. The examiner also noted the Veteran had some limitation of excursion of the diaphragm or of lower chest expansion from a gunshot or fragment wound of the pleural cavity. A chest x-ray revealed mild cardiomegaly with uncoiled tortuous aorta. Pulmonary function tests showed a FEV-1 of 81 percent predicted, FVC of 73 percent predicted, and FEV-1/FVC of 85 percent predicted. The examiner noted the FVC test most accurately reflects the Veteran's current pulmonary function. The examiner concluded that the impact of his condition was diminished exercise tolerance capacity which undermines the Veteran's ability to perform physical activities of employment. Upon consideration of all the evidence of record, the Board finds that the 20 percent disability rating currently in effect for service-connected limited excursion of the diaphragm, right chest is appropriate and should not be increased at this time. The results of the 2012 pulmonary function test show FEV-1 of 81 percent predicted and FEV-1/FVC of 85 percent predicted, which would equate to a noncompensable rating under Diagnostic Code 6843. Additionally, the 2010 pulmonary function test measured a FEV-1/FVC of 79 percent which would only equate a 10 percent rating. However, a 20 percent rating is mandated by statute as Note (3) of Diagnostic Code 6843 requires gunshot wounds of the pleural cavity with limitation of excursion of the diaphragm be rated at least 20 percent disabling. 38 C.F.R. § 4.97, Diagnostic Code 6843, Note (3). It is noted here that this disability has been evaluated as 20 percent disabling for over 20 years, it is considered to be a protected rating. 38 C.F.R. § 3.951(b). The injury involved the lower chest and there is no evidence of shoulder girdle involvement. As noted in the Introduction, service connection has separately been established for scars associated with the gunshot wound. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria for the disability at issue. The current applicable Code expressly addresses disability due to gunshot wounds to the pleural cavity. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. In summary, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to an increased disability rating for limited excursion of the diaphragm, right chest in this case. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Assignment of a staged rating is also not applicable. Fenderson, supra. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs