Citation Nr: 21004330 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 12-00 312A DATE: January 26, 2021 ORDER A disability rating greater than 20 percent for residuals, shell fragment wound (SFW) of the chest, pleural cavity injuries with retained foreign bodies, p.o. hemopneumothorax is denied. A compensable disability rating for residuals of scar on chest is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s residuals, SFW of the chest, pleural cavity injuries with retained foreign bodies, p.o. hemopneumothorax has been manifested by chest pain, most nearly approximating moderately severe disability of Muscle Group XXI. 2. Respiratory findings associated with SFE of the chest have been manifested by, at worst, a Forced Expiratory Volume (FEV-1) of 80 to 87 of predicted value, a Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 77 to 101 percent predicted, and a Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 102 to 117 percent predicted, with no cardiovascular complications. There is no evidence of pleurisy, episodes of total spontaneous pneumothorax, heart failure, respiratory failure, or the requirement of outpatient oxygen therapy. 3. The Veteran is service connected for several scars and is currently in receipt of separate 10 percent disability ratings for painful scars of the right thigh, right forearm, right hand, left triceps, and left foot resulting in a combined 50 percent disability rating for painful scars This exceeds the maximum disability rating of 30 percent for painful scars pursuant to 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804. There is no evidence that the Veteran’s scars of the chest are deep, unstable, lose their covering repeatedly, cover an area of 144 square inches or greater, or that they adversely affect any function. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for residuals, SFW of the chest, pleural cavity injuries with retained foreign bodies, p.o. hemopneumothorax, are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.73, DCs 5321-6843. 2. The criteria for a compensable disability rating for residuals of scar on chest have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.16, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from April 1968 to August 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburg, Pennsylvania which continued a 20 percent disability rating for residuals, SFW of the chest, pleural cavity injuries with retained foreign bodies, p.o. hemopneumothorax In January 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this proceeding has been associated with the claims file. Notably, during this hearing, the Veteran described symptoms which may be associated with his service-connected scar of the chest while providing testimony regarding the current level of severity of his SFW of the chest. Thereafter, in May 2019, the Board took jurisdiction of the issue of entitlement to a compensable disability rating for residuals of scar on chest as part of the appeal pertaining to the SFW of the chest and remanded this claim, as well as the SFW claim, for additional development. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; 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. 38 U.S.C. § 5107. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). By way of history, service treatment records show that the Veteran sustained severe combat injuries, to include shell fragment injuries of the chest, in October 1969 and, by rating decision dated in September 1970, the RO granted service connection for “residuals of hemopneumothorax, right,” (pursuant to DC 6818), along with several other disabilities, to include various scars, and assigned a combined 100 percent disability rating effective August 13, 1970, the day after the Veteran’s discharge from military service. Subsequently, by rating decision dated in August 1972, the RO separated out the Veteran’s disabilities, recharacterizing the SFW as “residuals SFW chest, pleural cavity injuries with retained foreign bodies, p.o. hemopneumothorax” and assigning this disability a 20 percent disability rating effective November 1, 1972 pursuant to DC 6818. The RO also recharacterized some of the Veteran’s scars as “residual scars, multiple SFW’s, both upper extremities, back, chest, both buttocks, right thigh, asymptomatic” and assigned a 10 percent disability rating effective November 1, 1972 pursuant to DC 7804. The 20 percent disability rating assigned for SFWs of the chest was continued by rating decisions dated in March 1975, November 1981, and February 2010. Also, in an October 2007 rating decision, the RO recharacterized the Veteran’s chest scars as “residuals of scar on chest” and assigned a noncompensable disability rating effective November 1, 1972. The Veteran submitted the current claim for an increased rating in June 2010 and, by rating decision dated in May 2011, the RO again continued the 20 percent disability rating assigned for SFWs of the chest. The Veteran disagreed with this decision and perfected this appeal. As above, during the January 2019 Board hearing, the Veteran described symptoms which may be associated with his service-connected scar of the chest while providing testimony regarding the current level of severity of his SFW of the chest. Thereafter, in May 2019, the Board took jurisdiction of the issue of entitlement to a compensable disability rating for residuals of scar on chest as part of the appeal pertaining to the SFW of the chest and remanded this claim, as well as the SFW claim, for additional development. 1. A disability rating greater than 20 percent for residuals, SFW of the chest, pleural cavity injuries with retained foreign bodies, p.o. hemopneumothorax is denied. As above, the Veteran’s SFW of the chest was originally rated pursuant to DC 6818 in 1970. The rating criteria for evaluating lung conditions changed on October 7, 1996. The Veteran’s SFW of the chest is now rated under 38 C.F.R. § 4.97, DC 6843, for “traumatic chest wall defect, pneumothorax, hernia, etc.” Significantly, pursuant to the current rating code, pleural cavity injuries and other disorders under DCs 6840 through 6845 are evaluated under a general rating formula for restrictive lung disease. Under DC 6843, a 30 percent rating is warranted where FEV-1 is 56 to 70 percent of predicted, or; the ratio of FEV-1/FVC is 56 to 70 percent, or; DLCO (SB) is 56 to 65 percent of predicted. A 60 percent rating is warranted where, FEV-1 is 40 to 55 percent of predicted value, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent (total) rating is warranted if FEV-1 is less than 40 percent of predicted value, or; with FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40 percent predicted, or; with maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; with cor pulmonale (right heart failure), or; with right ventricular hypertrophy, or; with pulmonary hypertension (shown by Echo or cardiac catheterization), or; with episode(s) of acute respiratory failure, or if the veteran requires outpatient oxygen therapy. 38 C.F.R. § 4.97, DC 6840. 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. Effective on October 6, 2006, VA added provisions that clarify the use of pulmonary function test (PFT) results in evaluating respiratory conditions, but do not alter specific ratings under the affected diagnostic codes. See 71 Fed. Reg. 52459 (Sept. 6, 2006) (codified at 38 C.F.R. § 4.96 (d)). This regulation entitled “Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845” has seven subsections. 38 C.F.R. § 4.96 (d)(1)-(7). PFTs are required except: (i) when the results of a maximum exercise capacity test are of record and are 15 ml/kg/min or less; if a maximum exercise capacity test is not of record, evaluation is based on alternative criteria; (ii) when pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed; (iii) when there have been one or more episodes of acute respiratory failure; or (iv) when outpatient therapy oxygen is required. 38 C.F.R. § 4.96 (d)(1). If the DLCO (SB) test is not of record, evaluation is 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). When the PFTs are not consistent with clinical findings, evaluation is based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a given case. 38 C.F.R. § 4.96 (d)(3). Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator tests should not be done and states why. 38 C.F.R. § 4.96 (d)(4). When evaluating based on PFTs, post-bronchodilator results are used in applying evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre-bronchodilator values are used for rating purposes. 38 C.F.R. § 4.96 (d)(5). When there is a disparity between the results of different PFT FEV-1 and FVC results, so that the level of evaluation would be different depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is used. 38 C.F.R. § 4.96 (d)(6). Finally, if the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio should not be assigned. 38 C.F.R. § 4.96 (d)(7). Also pertinent to this claim is DC 5321 which pertains to the functioning of muscles involved in respiration and the thoracic muscle group. Under DC 5321, a 10 percent rating for moderate functioning impairment of the thoracic muscles, and a maximum 20 percent rating for severe or moderately severe functioning impairment of the thoracic muscles. The Board initially notes that the Veteran cannot be rated under the respiratory codes cited and DC 5321 as that would be pyramiding. Since the Veteran has received 20 percent as a minimum for his chest residuals, which is the maximum rating under DC 5321, the Board will consider whether higher ratings are warranted under DC 6843. Evidence relevant to the current level of severity of the Veteran’s SFW of the chest includes VA examination reports dated in March 2011, March 2014, and January 2020. Also of record are VA and private treatment records dated through August 2020. During a March 2011 VA respiratory examination, the Veteran reported feelings of discomfort in his chest associated with his SFW of the chest. The examiner noted that a recent chest X-ray from March 2009 showed a stable chest with no acute pulmonary disease as well as unchanged shrapnel projected over the right hemithorax. Hearth size and pulmonary vasculature were within normal limits and there was no significant interval change. There was hyperinflation, with flattening of the diaphragm and enlargement of the anterior, posterior diameter of the chest. There were no focal infiltrates, consolidation, or mass. Blunting, right costophrenic, likely pleural scar, was noted. The impression was SFW, right chest, without respiratory disease or compromise at that time. During a March 2014 VA respiratory examination, the Veteran denied ever being diagnosed with a respiratory disability and the examiner noted that the Veteran’s treatment records were negative for a diagnosis or treatment for a respiratory disability. While the Veteran reported shortness of breath with weather changes, there was no dyspnea on exertion, no coughing, no hemoptysis, no asthma, no COPD (chronic obstructive pulmonary disorder), and no lung infections. Chest x-ray showed stable right hemithorax shrapnel and no acute cardiopulmonary abnormality or pulmonary mass lesion was identified. PFTs were within normal limits. Specifically, pre-bronchodilator the Veteran had an FVC of 78 percent, an FEV-1 of 83 percent, an FEV-1/FVC of 79 percent, and a DLCO of 117 percent predicted. Post-bronchodilator the Veteran had an FVC of 84 percent, an FEV-1 of 87 percent, an FEV-1/FVC of 77 percent, and a DLCO of 117 percent predicted. Respirations were easy, unlabored, and symmetrical. Lungs were clear to auscultation, anteriorly and posteriorly, and no rhonchi, rales, or wheezes were noted. The Veteran denied oxygen or inhaler medications. During a March 2014 VA muscles examination, the examiner noted a diagnosis of retained shrapnel right hemithorax unchanged, with residual scar and soreness without clinical or diagnostic evidence of a muscle injury. The Veteran reported pain to the anterior and lateral right chest which was described as, “irritating” and he reported he had to sleep on his right side to help him relax. This pain occurred with or without activity and was worse with all weather changes. He did not treat this pain with anything, as he had tried pain medication in the past but could not tolerate it. He reported right sided chest anterior and posterior pain with bending forward and reaching or turning to the left. There was no muscle weakness and no muscle atrophy. During a January 2020 VA respiratory examination, the examiner noted a diagnosis of hemopneumothorax secondary to GSW (gunshot wound) with residual fragments, resolved with residual scars. The Veteran reported that his breathing was “very uncomfortable” and that it was painful to take a deep breath. He was currently not on any medications for the breathing. He reported that he has pain with exertion or doing activity. He also had discomfort with lying or pressure on the right side. With deep breath, he had pain on inspiration. With regard to PFT, pre-bronchodilator the Veteran had an FVC of 79 percent, an FEV-1 of 80 percent, an FEV-1/FVC of 101 percent, and a DLCO of 102 percent predicted. While there were no findings post-bronchodilator, the examiner noted that the pre-bronchodilator results accurately reflected the Veteran’s current pulmonary function. The examiner noted that the Veteran’s PFTs were interpreted as suggestive restrictive component, likely due to poor inspiration from splinting. This was likely due to the pain in the chest wall with deep inspiration from the residual SFW. There pulmonary nodules noted on chest computed tomography are on the left chest and unrelated to the shrapnel injury. The x-ray shows pleural scarring on the right side, consistent with the area of injury anatomically. During a January 2020 VA muscle examination, the examiner noted a diagnosis of SFW, right chest wall. It was noted that this was a penetrating muscle injury pertaining to muscle group XXI (muscles of respiration, thoracic muscle group) with multiple scars over the right chest wall and residual tenderness. There were residual fragments within the chest wall, radiographically, and the Veteran reported pain with deep inspiration, movement, or pressure on the right side. Muscle strength testing was normal and there was no muscle atrophy. Also of record are VA and private treatment records dated through August 2020 which show findings similar to those noted above. Upon review of the evidence of record, the Board finds that a disability rating higher than 20 percent for the Veteran’s SFW of the chest is not warranted. As above, the next higher rating of 30 percent under DC 6843 requires an FEV-1 of 56 to 70 percent of predicted, or; a ratio of FEV-1/FVC from 56 to 70 percent, or; DLCO (SB) of 56 to 65 percent of predicted. Instead, the Veteran’s SFW of the chest has been shown to manifest, at worst, an FEV-1 of 80 to 87 of predicted value, an FEV-1/FVC of 77 to 101 percent predicted, and a DLCO of 102 to 117 percent predicted. Also, the Veteran did not have a diagnosis of pleurisy with empyema to warrant him a 100 percent rating under Note (1) of DC 6843. In fact, the Veteran’s PFTs are essentially normal and, even if they were impaired, DC 6843 provides that involvement of Muscle Group XXI (DC 5321) will not be separately rated. As such, there is no basis for a separate or higher rating. The Board has also considered the Veteran’s statements, to include his contention that his SFW of the chest warrants a disability rating greater than 20 percent. The Board acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant a higher rating for his SFW of the chest; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Moreover, under 38 C.F.R. § 4.96 (d)(1), PFTs are specifically required to evaluate respiratory conditions except under specific conditions which have not been shown in this case. Therefore, the Board finds that the medical findings, which directly address the criteria under which the service-connected disability is evaluated, are more probative than the Veteran’s own assessment of the severity of his disability. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating greater than 20 percent for SFW of the chest. In denying additional and higher ratings, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. A compensable disability rating for residuals of scar on chest is denied. The Veteran seeks a higher (compensable) disability rating for his service-connected scars of the chest. As above, by rating decision dated in August 1972, the RO assigned a 10 percent disability for the Veteran’s “residual scars, multiple SFW’s, both upper extremities, back, chest, both buttocks, right thigh, asymptomatic” effective November 1, 1972 pursuant to DC 7804. Subsequently, in an October 2007 rating decision, the RO separated out the Veteran’s service- connected scars and, in pertinent part, recharacterized the Veteran’s chest scars as “residuals of scar on chest,” assigning a noncompensable disability rating effective November 1, 1972 and also assigned separate 10 percent disability ratings for the Veteran’s scars of the left tricep and right thigh based on these scars being painful. Thereafter, by rating decision dated in February 2010, the RO granted service connection for scarring of the left foot, assigning a 10 percent disability rating effective June 19, 2009 based on the scar being painful. The Veteran’s chest scars are current rated under 38 C.F.R. § 4.118, DC 7804. The diagnostic criteria for disorders of the skin are found at 38 C.F.R. § 4.118, DC’s 7801-7805. Under DC 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10 percent rating. Under DC 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (2) under that code provides that if multiple qualifying scars are present, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation, three or four scars that are unstable or painful warrant a 20 percent evaluation, five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (2) for that code provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) under that provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7803, when applicable. DC 7805 provides that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DCs 7800-04 under an appropriate DC. 38 C.F.R. §§ 4.118, DCs 7801-7805. Evidence relevant to the current level of severity of the Veteran’s scars of the chest includes March 2011, February 2014, and January 2020 VA examinations. Also of record are VA and private treatment records dated through August 2020. During a March 2011 VA respiratory examination it was noted that the Veteran had residual scarring of the chest but there were no specific findings regarding these scars. During a February 2014 VA scar examination, the examiner diagnosed SGW, shrapnel, lower right chest wall with residual scars and without residual pain. The examiner noted the Veteran’s history of SFW of the chest with bullet removal and residual retained shrapnel of the right hemithorax and superficial scar formation, well healed, and without residuals. The examiner noted that the chest scars were not painful and were not unstable, with frequent loss of covering of skin over the scar. There were three scars of the posterior trunk with an approximate total area of 4 centimeters squared. During a January 2020 VA scar examination, the examiner diagnosed residual scars, right chest wall, secondary to shrapnel wounds and chest tubes from shrapnel injury. Significantly, there were five scars in total and the examiner found that three of these scars were painful with movement, inspiration, and pressure. None of these scars were unstable, with frequent loss of covering of the skin of the scars. The scars of the anterior trunk had an approximate total area of 1.5 centimeters and the scars of the posterior trunk had an approximate total area of 4.7 centimeters. Two of the scars on the anterior chest wall were depressed 2 millimeters from the other skin tissue. Also of record are VA and private treatment records dated through August 2020 which show findings similar to those noted above. Upon review of the evidence of record, the Board finds that a compensable disability rating is not warranted for the Veteran’s scars of the chest. While the Veteran was found to have three painful scars of the chest during the January 2020 VA examination, and DC 7804 allows for a 10 percent rating for one or two scars that are unstable or painful, it appears that the Veteran is already being compensated appropriately, and then some, for painful scars under DC 7804. Notably, while the Veteran is in receipt of separate 10 percent disability ratings for scars of the right thigh, right forearm, right hand, left triceps, and left foot based on these scars being painful, these awards appear to be based on the old rating criteria pertaining to scars. Significantly, under the regulation in effect prior to October 23, 2008, superficial scars which are painful upon examination are entitled to separate 10 percent evaluations. 38 C.F.R. § 4.118, DC 7804 (2007). However, this appeal stems from a June 2010 claim for an increased rating and, as such, the current regulations are for application. Under the current DC 7804, unstable or painful scars are rated together, and there is no provision in the current DCs for separate anatomical areas, with the number of individual scars being the most important consideration. In this regard, if a veteran has five or more scars that are painful or unstable, the veteran is entitled to the maximum 30 percent schedular rating. Id. In this case, the Veteran has at least five service-connected scars which are painful (three painful chest scars as well as painful scars of the right thigh, right forearm, right hand, left triceps, and left foot), which is more than the five necessary to qualify for the maximum schedular rating under DC 7804. While the Veteran should be in receipt of a combined 30 percent disability rating based on his painful scars which total more than five, instead he is in receipt of five separate 10 percent disability ratings for these scars. Pursuant to 38 C.F.R. § 4.25 (combined ratings table), five separate 10 percent ratings results in a combined rating of 50 percent. As such, it appears that the Veteran is currently over-rated for his scar disabilities. However, the Board will not disturb the Veteran’s current ratings pertaining to his scars and will not assign an even higher separate compensable rating for his chest scars. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable disability rating for chest scars. In denying additional and higher ratings, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, Counsel 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.