Citation Nr: 1323770 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-13 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for service-connected residuals of a gunshot wound to the left chest wall , currently rated as 20 percent disabling. ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from June 1962 to March 1964 and from October 1966 to May 1978. This matter came to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2010 and May 2012, the Board remanded the case for further development. The requested development has been completed and the case has been returned to the Board for further appellate action. Subsequent to recertification of the Veteran's appeal to the Board in March 2013, additional VA treatment records were associated with the claims file. However, as this evidence reflects evidence not pertinent to the issue on appeal, or cumulative of that already of record, remand is not required. FINDINGS OF FACT 1. The Veteran's 20 percent rating for gunshot wound injury of Muscle Group XXI has been in effect since June 1, 1978 and is protected by law. 2. The record does not establish that the Veteran's gunshot wound residuals include documented respiratory impairment constituting a disability. CONCLUSION OF LAW The criteria for greater than a 20 percent rating under the appropriate respiratory diagnostic codes have not been met. 38 U.S.C.A. § 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6843 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A January 2007 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration (SSA) disability determination records considered in making that decision were obtained in April 2011. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The December 2012 VA examination was adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The July 2012 VA examination completed a full physical evaluation and recorded the Veteran's reported symptoms; although pulmonary function testing was not completed; the Board finds that the examination is not insufficient on this basis as the Veteran was notified of the examination and elected not to report for the pulmonary function testing. The duty to assist is not a one-way street; if a claimant wishes help in developing his or her claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Review of the record does not indicate that additional evidence pertinent to the issue adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Although the evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's gunshot wound residuals to the left chest is rated 20 percent disabling under 38 C.F.R. § 4.73, Diagnostic Code 5321 for muscles of respiration. The 20 percent rating has been in effect since June 1, 1978 (the day after the Veteran's separation from service), and is thus protected by law pursuant to 38 C.F.R. § 3.951(b). Further, the 20 percent rating assigned is the maximum rating available under Diagnostic Code 5321. However, potentially higher evaluations are available for the Veteran's service-connected disability under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6843, for traumatic chest wall defect. Under 38 C.F.R. § 4.97, Diagnostic Code 6843, disability evaluations are rated from 0 to 100 percent under the general rating formula for restrictive lung disease, and require the use of pulmonary function testing. A Note to the code clearly specifies that when, as here, Muscle Group XXI is involved, a separate rating is not available. Therefore, since they cannot be rated separately, the focus of the present appeal is whether the evidence supports a rating under Diagnostic Code 6843 that is higher than the one currently assigned under Diagnostic Code 5321. [To the extent that the Veteran's left chest gunshot wound residuals also include a chest scar, a January 2012 rating decision assigned a 10 percent separate rating under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012), which the Veteran has not challenged.] Diagnostic Code 6843 contemplates traumatic chest wall defect, pneumothorax, hernia, etc., and is subsumed into the General Rating Formula for Restrictive Lung Disease (General Rating Formula). See 38 C.F.R. § 4.97 (2012). The General Rating Formula provides that Forced Expiratory Volume in one second (FEV-1) of 56- to 70-percent predicted, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 56- to 70-percent or; DLCO (SB) 56- to 65-percent predicted, is rated 30-percent disabling. 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), is rated 60-percent disabling. FEV-1 less than 40-percent of predicted value, or; FEV-1/FVC less than 40-percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; 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; requires outpatient oxygen therapy, is rated 100-percent disabling. 38 C.F.R. § 4.97. Notes to the General Rating Formula for Restrictive Lung Disease provide further rating guidance. Note (1) provides that a 100-percent rating shall be assigned for pleurisy with empyema, with or without pleurocutaneous fistula, until resolved. Note (2) provides that, following episodes of total spontaneous pneumothorax, a rating of 100-percent shall be assigned as of the date of hospital admission and shall continue for three months from the first day of the month after hospital discharge. 38 C.F.R. § 4.97. The rating schedule contains special provisions regarding evaluation of respiratory conditions. For example, if the DLCO (SB) test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d) (2) (2012). Post-bronchodilator studies are required when pulmonary function tests are done for disability evaluation purposes, except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d) (4). When evaluating based on pulmonary function tests, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. 38 C.F.R. § 4.96(d) (5). After review of the record, the Board finds that the evidence does not support a higher rating under Diagnostic Code 6843. While the Veteran reported at the April 2007 VA muscles examination that his biggest post gunshot wound problem was shortness of breath with exertion, which had worsened greatly over the past couple of years, occurred with any kind of activity, and resulted in limitations of activity, no pulmonary function tests (PFTs) were conducted. To that end, although PFTs were scheduled in conjunction with the July 2012 VA examination, the Veteran failed to report for that part of the examination. Wood, supra. To that end, the evidence of record also does not establish other clinical findings that would warrant greater than a 20 percent rating under Diagnostic Code 6843. A July 2002 chest X-ray was normal; while April 2003 and March 2005 chest X-rays noted the presence of a tiny granuloma, they also showed no acute cardiopulmonary disease and no evidence of pneumothorax; with clear lungs overall; a July 2007 chest X-ray's impression was normal for the Veteran's age, and a September 2012 chest X-ray was normal, specifically ruling out the presence of chronic obstructive pulmonary disease (COPD) and asthma. Further, while the Veteran's reports of shortness of breath, usually with activity and occasionally at rest, are repeatedly noted throughout the voluminous VA treatment records associated with the claims file as well as the July 2012 VA examination report, no respiratory condition was diagnosed as being a residual of the gunshot wound. At the July 2012 VA examination, the examiner noted that review of the VA electronic file did not show treatment for a respiratory condition. Physical examination showed that lungs were clear to auscultation bilaterally in all fields with air moving in and out freely, and no rhonchi, rales, or wheezes. The examiner found that the Veteran did not now have or had ever been diagnosed with a respiratory condition, as there was no objective evidence of left lung residuals from the gunshot injury to the left chest in 1968, and concluded that a more precise diagnosis cannot be rendered as there is no objective data to support a more definitive diagnosis, to include the PFTs for which the Veteran did not report. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1) (2011). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular rating in this case is adequate. Ratings in excess of that assigned are provided for certain manifestations of the service-connected disability, but the medical evidence reflects that those symptoms are not present. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's gunshot wound residuals, especially as the maximum schedule rating contemplates the severe muscle injury sustained by the Veteran and the evidence does not establish the existence of a respiratory disability. Marked interference of employment has also not been shown; the Veteran's SSA records and the majority of the record establish that the Veteran's primarily employment barrier results from his nonservice-connected head injury residuals. Therefore, the Veteran's disability picture is contemplated by the Rating Schedule; no extraschedular referral is required. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and an increased rating is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an increased rating for service-connected residuals of a gunshot wound to the left chest wall is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs