Citation Nr: 20021841 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 16-30 175 DATE: March 27, 2020 ORDER Entitlement to a rating greater than 60 percent for pulmonary obstructive disease, pulmonary fibrosis, is denied. Entitlement to a rating greater than 10 percent for a scar, neck/sternal notch, is denied. Entitlement to a rating greater than 10 percent for a scar from the chest to the abdomen is denied. REMANDED Entitlement to a rating greater than 60 percent for coronary artery disease (CAD), status post coronary artery bypass graft (CABG) with hypertensive heart disease, is remanded. Entitlement to a compensable rating for reconstructive surgery requiring the relocation of an abdomen muscle with residual weakness is remanded. Entitlement to a compensable rating for scars on the chest and abdomen, including on the right and left upper quadrants, also left leg, is remanded. Entitlement to Dependents’ Educational Assistance (DEA) is remanded. FINDINGS OF FACT 1. The Veteran’s pulmonary disability does not result in a forced expiratory volume in one second (FEV-1) that is less than 40-percent predicted, or; a ratio of forced expiratory volume in one second to forced vital capacity (FEV-1/FVC) of less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath method (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, or right ventricular hypertrophy, or; pulmonary hypertension, or; episodes of acute respiratory failure, or require outpatient oxygen therapy. 2. The Veteran’s neck scar is not painful, is not unstable, and does not cause visible tissue loss, gross distortion or asymmetry of any feature. 3. The Veteran’s scar on the anterior torso (chest) is not unstable and is not deep and nonlinear. CONCLUSIONS OF LAW 1. The criteria are not met for a disability rating in excess of 60 percent for the pulmonary obstructive disease. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6604. 2. The criteria are not met for a disability rating in excess of 10 percent for the scar on the neck/sternal notch. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7800. 3. The criteria are not met for a disability rating in excess of 10 percent for the scar from the chest to the abdomen. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, 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. Id. § 4.3. “Staged” ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings – irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an evaluation greater than 60-percent disabling for pulmonary obstructive disease, pulmonary fibrosis. The Veteran would be entitled to a higher 100 percent rating if he has an FEV-1 that is less than 40-percent predicted, or; a ratio of FEV-1/FVC of 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, or right ventricular hypertrophy, or; pulmonary hypertension, or; episodes of acute respiratory failure, or if outpatient oxygen therapy is required. A January 2017 VA Disability Benefits Questionnaire (DBQ) reflects that the Veteran reported experiencing shortness of breath with climbing less than one flight of stairs. He also reported using an albuterol inhaler daily with some benefit. On pulmonary function testing (PFT), he had post-bronchodilator findings of an FEV-1 of 52 percent predicted, and a ratio of FEV-1/FVC of 67 percent. He also had an FVC of 61 percent predicted. The examiner found that, of all possible tests, the FVC percent predicted was the most accurate for evaluating the level of the Veteran’s disability, and that DLCO testing was not indicated in this particular case because the PFTs accurately reflect the extent of impaired pulmonary functioning. Based on those January 2017 DBQ findings, the Veteran’s disability warrants no higher than a 60 percent rating. An April 2017 VA pulmonary clinical record reflects that the Veteran reported that he can walk approximately half a mile on flat ground, but that it takes him 30 minutes or more; he stated that any incline or a flight of stairs “wipes” him out. A January 2019 VA pulmonary clinical record reflects that the Veteran reported that his shortness of breath had worsened since December 2016, but that his symptoms had plateaued over the last year. It was noted that he works as a greeter at a large store and is on his feet for much of the day. He reported that he can walk approximately ½ mile on flat ground, but that it takes 30 minutes, and that he is able to go up one flight of stairs slowly. A May 2019 VA clinical record reflects that the Veteran reported that he has dyspnea on exertion (DOE) and cannot climb two flights of stairs without stopping; walking several blocks worsens his DOE. The Veteran testified during his February 2020 Board hearing that he can walk maybe one block or climb one flight of stairs before he must stop and rest. He also reported using an inhaler on a daily basis, and that he has an emergency inhaler. His hearing testimony does not reflect a worsening of his disability since the 2017 DBQ examination (i.e., the distance and flights of steps before shortness of breath has not lessened). Consequently, the Board is not directing that he undergo another VA compensation examination reassessing the severity of this disability. See, e.g,, Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007). The Veteran is competent to report shortness of breath; however, the rating criteria for his disability are based on diagnostic testing – including in terms of how his shortness of breath impacts the results of his PFT. His disability has not been shown by competent and credible evidence to warrant higher than a 60 percent rating. Not only did he not have a PFT finding that would warrant a higher rating,   but he has not been shown to have maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale, or right ventricular hypertrophy, or; pulmonary hypertension, or; episodes of acute respiratory failure, or that outpatient oxygen therapy required. Since, for the reasons and bases discussed, the preponderance of the evidence is against this claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). This, this claim must be denied. 2. Entitlement to an evaluation greater than 10-percent disabling for the scar, neck/sternal notch. The Veteran’s scar is rated as 10-percent disabling under DC 7800. He would be entitled to a higher 30 percent rating if he had visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (included eyelids), ears (auricles), cheeks, lips; or with two or three characteristics of disfigurement. The eight characteristics of disfigurement are 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.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). A 2017 VA DBQ reflects that the Veteran scar of the neck was a “small” scar at the sternal notch. It was not painful, unstable, and measured 5 x.2 cm. There was no elevation, depression adherence to underlying tissue, or missing underlying soft tissue. There was also no abnormal pigmentation or texture. It was not tender to palpation. It did not cause disfigurement. The Board has reviewed the photographs of the Veteran’s neck, which are associated with the claims file, and finds that there is no visible evidence of two more characteristics of disfigurement. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Hence, this claim is denied. 3. Entitlement to an evaluation greater than 10-percent disabling for the scar from the chest to the abdomen. The Veteran has a scar extending from his chest to his lower abdomen. This scar is rated as 10-percent disabling under DC 7804. Under DC 7804, he would be entitled to a higher rating if he had three or more scars that are unstable or painful. He would also be entitled to a higher rating under another diagnostic code if the area was 144 square inches and the scar superficial, or if the scar was deep, nonlinear, and an area of at least 77 sq. cm. The evidence reflects that the Veteran has one long scar that goes from the notch of the sternum to his navel. At the 2017 examination (DBQ), the Veteran reported only one painful scar (the vertical scar); upon examination, it was not unstable and there was no frequent loss of covering of skin. During his Board hearing, the Veteran testified that the scar aches all the time and hurts if someone pokes him. He said his belt buckle rubs against it and his pants rub against it, and it is tender. He added that the tissue underneath is not unstable. The scar, on the anterior trunk, has been described as 55 x 2 cm. in size, superficial and nonlinear. Based on this description, a rating greater than 10 percent is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to an evaluation greater than 60-percent disabling for CAD, status post CABG with hypertensive heart disease, is remanded. This heart disability is evaluated as 60-percent disabling under DC 7005. The Veteran would be entitled to a 100 percent rating if he had documented CAD resulting in chronic congestive heart failure (CHF), or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. A January 2017 VA DBQ indicates that an exercise stress test was not without significant risk to the Veteran. Therefore, his METS was evaluated by interview. He reported having dyspnea at a METs level, based solely on his heart disability, of greater than 7-10. This level was noted to be consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging. As noted above with regard to his pulmonary disability, the Veteran has reported shortness of breath with climbing less than one flight of stairs (January 2017 pulmonary DBQ), or walking ½ a mile in 30 minutes (April 2017, January 2019 VA pulmonary clinical record), that he can go up one flight of stairs if he goes slowly (January 2019 VA pulmonary clinical record), that he cannot climb two flights of stairs without stopping, walking several blocks worsens his DOE (May 2019), and that he can walk approximately one block or climb one flight of stairs before he has to stop and rest (February 2020 Board hearing testimony). These contentions are suggestive of a METS level lower than 7-10. Based on the Veteran’s reported symptoms and consequent impairment, the Board finds that clarification from a qualified clinician would be helpful, as well as another possible examination if needed. Specifically, the designated clinician must explain, to the extent possible, why the Veteran’s reported shortness of breath upon climbing stairs and walking is as likely as not due to his service-connected pulmonary obstructive disease, pulmonary fibrosis, as opposed to his CAD, or vice versa. If the Veteran’s ejection fraction would aid in rendering this opinion, he should be scheduled for all necessary additional testing. 2. Entitlement to a compensable evaluation for reconstructive surgery requiring relocation of an abdomen muscle with residual weakness is remanded. The Veteran’s disability is evaluated as noncompensable under DC 5319 which is the diagnostic code for a disability of Muscle Group XIX (support and compression of abdominal wall and lower thorax, flexion and lateral motions of the spine; synergists in strong downward movements of the arm). When evaluating muscle group injuries, the history of the injury is for consideration. On June 6, 2008, the Veteran had a CABG. He subsequently developed MRSA. On July 3, 2008, he coughed and dehisced the sternum and overlying skin incision; he was taken to the operating room for emergent debridement of the sternum. His sternal dehiscence (i.e. wound separation) required wound vacuum-assisted closure (VAC). Sternum cultures were positive for light staph aureus. On July 8, 2003, he was taken back to the operating room for sternal plating with tri-muscle flap for coverage using bilateral pectoralis major and right rectus abdominus. The old wound VAC was removed; there was also minimal curettage (e.g. scrapping of minimal material) of the underlying sternum and subcutaneous tissue. Subpectoral skin flaps were raised in order to accommodate sternal plating. In total, five plates and 64 screws were inserted. He was released from the hospital on July 23, 2008 (approximately 6 weeks after his admission on June 4, 2008). A February 2017 VA examination report reflects that the Veteran’s 2008 reconstructive surgery required relocation of the abdominal wall muscle with residual weakness. The report reflects the muscle injury was a non-penetrating injury, and that the muscle group affected was Group XIX on the left side only. The report reflects that there were no fascial defects associated with the muscle injury, that muscle substance or function was not affected, and that the Veteran did not have any of the cardinal signs and symptoms of muscle disability (loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, or uncertainty of movement). Upon testing, the Veteran had normal muscle strength, with no atrophy. The examiner noted that there was a “palpable defect in the left subcostal area approximately 10 x 20 cm.” in size. The examiner also noted that the impact of the Veteran’s muscle injury would be that it is difficult for him to lift weight. The examiner opined that “residual weakness is due to a defect in the abdominal musculature caused by the mobilization of the muscle flap.” This seemingly contradicts the finding of no cardinal sign, such as weakness. The Veteran testified at the 2020 Board hearing that he has no upper body strength and has to use his abdominal muscles more than normal because he cannot use his chest muscles. He reported its painful every time he has to tighten his abdominals (e.g. he feels it pull). He also reported muscle atrophy. His contentions differ substantially from the 2017 examination report. Thus, the Board finds that another examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Entitlement to a compensable rating for scars on the chest and abdomen (including right and left upper quadrants), and left leg, is remanded. The Veteran has reported that his scar is on the left leg; he is in receipt of service connection for a left lower extremity scar, and the clinical records note a left leg scar. At the 2017 examination, the examiner noted that the Veteran has a right lower extremity scar located on the right inner thigh, and that the left lower extremity was not affected. However, the report notes that the Veteran reported that the scar was a left leg scar from the ankle to the knee. Based on the foregoing, another examination is warranted. 4. Eligibility to DEA under 38 U.S.C. Chapter 35 (claimed as permanent and total determination). This claim is inextricably intertwined with those above because it is dependent on the Veteran’s combined rating.   These matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his CAD status post CABG with hypertension. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should review the 2017 DBQ and explain, if reasonably possible, why the Veteran’s 2017 reported shortness of breath upon climbing stairs and walking, and his current reports of the same, is/was due to his service-connected pulmonary obstructive disease, pulmonary fibrosis, as opposed to his CAD, or vice versa. If the Veteran’s ejection fraction would aid in rendering an opinion, the Veteran should be scheduled for testing. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his muscle Group XIX symptoms due to his reconstructive surgery requiring the relocation of an abdomen muscle. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The clinician should determine if the Veteran’s contentions as to atrophy, pain, and weakness are supported by examination.   3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of left lower extremity scar. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.