Citation Nr: 0003551 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 94-17 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased evaluation for pulmonary emphysema, currently evaluated as 30 percent disabling. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: R. Edward Bates, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kelli A. Kordich, Associate Counsel INTRODUCTION The veteran served on active duty from January 1970 to November 1971 and from August 1972 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. By a rating decision dated November 1993, the RO denied an increased disability evaluation for chronic pulmonary disease. By a rating decision dated October 1999 the RO increased the evaluation to 30 percent for the veteran's chronic pulmonary disease and denied entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). The Board in July 1997 remanded the case for further development, and following the accomplishment of the requested development, the case was returned to the Board for appellate review. FINDINGS OF FACT 1. The veteran's service-connected pulmonary emphysema is characterized by an FEV-1 of 66 percent of predicted and an FEV-1/FVC of 76 percent, resulting in chronic mild obstructive disease. 2. The veteran's service-connected disabilities are pulmonary emphysema, evaluated as 30 percent disabling; residuals, fracture, first metacarpal, right hand (dominant), evaluated as 0 percent disabling; residuals, excision of lipoma, right upper arm (dominant), evaluated as 0 percent disabling; and left inguinal hernia, postoperative, evaluated as 0 percent disabling. The combined disability rating is 30 percent. 3. The veteran's service-connected disabilities do not preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 30 percent for pulmonary emphysema, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.20, 4.97, Diagnostic Code 6603 (in effect prior to October 7, 1996), and Diagnostic Codes 6603 and 6604 (effective October 7, 1996). 2. The criteria for a total rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased rating By a rating decision dated September 1989, the veteran was granted service connection for chronic obstructive pulmonary disease (COPD) and assigned a 10 percent evaluation effective December 16, 1988. The veteran filed a reopened claim for an increased evaluation in August 1993. During the prosecution of his appeal, the RO in October 1999 increased the evaluation for the veteran's COPD, re-characterized as pulmonary emphysema, to 30 percent disabling, effective August 25, 1993. A person who submits a claim for benefits under a law administered by VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (Court) has held that an allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased rating is well grounded within the meaning of 38 U.S.C.A. § 5107(a). Once a claimant has presented a well-grounded claim, VA has a duty to assist the claimant in developing facts that are pertinent to the claim. See 38 U.S.C.A. § 5107(a). The Board finds that all relevant facts have been properly developed and that all evidence necessary for an equitable resolution of the issue on appeal has been obtained. Therefore, no further assistance to the veteran with the development of evidence is required. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (rating schedule) to the veteran's current symptomatology. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Board reviews the extent to which a service-connected disability adversely affects the veteran's ability to function under the conditions of ordinary daily life. The Board then assigns a rating, which as far as practicable, is based upon the extent to which the current disability impairs the veteran's earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two evaluations are potentially applicable the higher evaluation will be assigned if the disability appears to approximate more closely the criteria required for that evaluation. Otherwise, the Board will assign the lower evaluation. 38 C.F.R. § 4.7. The Board recognizes that the veteran's disability may require reevaluation in accordance with changes in his condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. That notwithstanding, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran essentially contends that the 30 percent evaluation for his pulmonary emphysema does not adequately reflect the severity of his disability. A review of the evidence of record reveals that the veteran underwent a VA examination in April 1996 and that the diagnosis at that time was bronchitis and upper respiratory infection. An addendum stated that after review of the pulmonary function testing, a new diagnosis was mild restrictive ventilatory deficit. Pulmonary function tests revealed a forced expiratory volume at one second (FEV-1) of 64 percent of predicted and a forced vital capacity (FVC) of 69 percent of predicted. The actual FEV-1/FVC was 77 percent; the ratio of predicted values was 93 percent. At a September 1998 VA examination, the veteran complained of occasional dry cough with sputum on occasion. The effect of dyspnea was said to be moderate after one flight of stairs, and the veteran had no asthma. He used a metered dose inhaler, but had never been hospitalized for his condition. Pulmonary function tests showed that FEV-1 was 66 percent of predicted; FVC was 71 percent of predicted. FEV-1/FVC was 76 percent. Diffusion capacity of the lungs for carbon monoxide (DLCO) was 84 percent of predicted. Total lung capacity (TLC) was 118 percent, and residual volume (RV) was 219 percent. The diagnosis was chronic mild obstructive disease with air trapping. Social Security records show that an examination dated April 1991 showed history of chronic emphysema and bronchitis for many years. At the examination, the veteran complained that he could walk less than one block and up to about two flights of stairs. His lungs were clear to auscultation and percussion. The examiner's impression was emphysema and possible chronic obstructive pulmonary disease. Another examination for social security purposes was conducted in November 1991. The examiner noted complaints of shortness of breath. The examination showed no clinical signs of lung disease. There were no rales, rhonchi, wheezes, prolonged expiration, clubbing or cyanosis, and no decreased breath sounds. The veteran did not have a barrel chest and no prolonged expiratory phase. He denied chest pain and indicated that he was able to go up two flights of stairs and walk one block before he got shortness of breath. The examiner indicated that there were no objective findings to support a diagnosis of emphysema. Social Security Administration records show that benefits from that agency had been terminated, as the veteran was determined to be able to maintain substantially gainful employment. A March 1998 examination associated with his Social Security disability claim showed a history of chronic obstructive pulmonary disease of more than 20 years and complaints of shortness of breath when walking more than one mile. He also occasionally wheezed. There was no cough at the time of the examination and no history of congestive heart failure. The veteran was noted to be a smoker, and at the time of that examination, was taking an Atrovent inhaler two puffs as needed and an Albuterol inhaler two puffs as needed. Chest expansion was symmetrical, and the chest was clear to auscultation and percussion. The veteran reported minimal exertional dyspnea. Pulmonary function studies were not performed due to the normal chest examination. The diagnosis was chronic obstructive pulmonary disease, mild, with chronic cigarette dependence. The criteria for evaluating the veteran's service-connected respiratory disability, emphysema, previously rated as chronic obstructive pulmonary disease, are provided at 38 C.F.R. § 4.97 (1999). The provisions of the rating schedule for determining the disability evaluations for respiratory disorders were changed effective October 7, 1996. See 61 Fed. Reg. 46, 720-46, 731 (1996). Where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308 (119). Therefore, the veteran is entitled to evaluation of his increased rating claim under both the new and the old criteria. The RO afforded the veteran a VA examination in September 1998, and reconsidered his claim under all applicable laws and regulations in increasing the evaluation to 30 percent by a rating decision dated October 1999; nevertheless, the veteran's appeal continued. The veteran's emphysema is evaluated under 38 C.F.R. § 4.97, Diagnostic Code 6603. The "old" criteria for evaluation of emphysema provide a 30 percent rating for moderate impairment manifested by moderate dyspnea occurring after climbing one flight of steps or walking more than one block on a level surface, or by pulmonary function tests consistent with findings of moderate emphysema. A 60 percent evaluation was warranted for severe impairment manifested by exertional dyspnea sufficient to prevent climbing one flight of steps or walking one block without stopping, or by ventilatory impairment of severe degree confirmed by pulmonary function tests with marked impairment of health. A 100 percent evaluation was warranted for pronounced impairment that was intractable and totally incapacitating with dyspnea at rest, or marked dyspnea and cyanosis on mild exertion; the severity of the emphysema was confirmed by chest x-rays and pulmonary function tests. Under the criteria of Diagnostic Code 6603, as revised, a 100 percent rating is warranted for disability manifested by an FEV-1 less than 40 percent of predicted value; or the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent; or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40 percent of 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. A 60 percent rating is warranted for disability manifested by FEV- 1 of 40- to 55 percent of predicted; or FEV-1/FVC of 40 to 55 percent; or DLCO (SB) of 40 to 55 percent of predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). 38 C.F.R. § 4.97, Diagnostic Code 6603 (1999). As is noted above, the veteran is entitled to evaluation under both the old and new criteria for respiratory disorders. Currently, he has a 30 percent disability rating for his service connected emphysema. However, a careful review of the evidence under either criteria demonstrates that an increased rating for his respiratory disability is not warranted at this time. Considering first the criteria in effect prior to October 7, 1996, the evidence does not suggest severe disability with exertional dyspnea sufficient to prevent climbing one flight of stairs or walking one block without stopping, or ventilatory impairment of severe degree confirmed by pulmonary function test with marked impairment of health. While the veteran has reported some exertional dyspnea, as indicated by Social Security Administration examinations in 1991, he has not indicated he cannot walk more than one block or climb a set of stairs without stopping to rest. Ventilatory impairment of a severe degree has also not been demonstrated. The Social Security examination noted no rales, rhonchi, wheezes, prolonged expiration, clubbing or cyanosis. There were no decreased breath sounds, and the veteran did not have a barrel chest, prolonged expiratory phase, or chest pain. Overall, the disability picture does not suggest severe impairment. The veteran has not undergone frequent or prolonged hospitalization due to his service connected respiratory disability. Based on these findings, a rating in excess of 30 percent under the criteria in effect prior to October 7, 1996, is not warranted. Likewise, review of the evidence in light of the revised criteria effective October 7, 1996, does not suggest an increased rating is warranted. The new rating criteria are based upon specific numeric results of various pulmonary function tests, as is noted above. See 38 C.F.R. § 4.97 (1999). The veteran's most recent VA examination in September 1998 is the only recent medical record indicating such test results. FEV-1 was 66 percent of predicted, FVC was 71 percent of predicted, and FEV-1/FVC was 76 percent. The measured DLCO was 84 percent of predicted. The veteran's diagnosis was mild obstructive lung disease. These results do not equal or more nearly approximate those necessary for the next higher rating of 60 percent under Diagnostic Code 6603 (1999). 38 C.F.R. § 4.7. The Board has considered whether an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) is warranted. In the instant case, however, there has been no showing that the disability under consideration has, by itself, caused marked interference with employment, necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. In the absence of such factors, the Board determines that the criteria for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237, 239 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). II. TDIU Initially, the Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more. 38 C.F.R. § 4.16(a). The record discloses that service connection is in effect for pulmonary emphysema, evaluated as 30 percent disabling; residuals, fracture, first metacarpal, right hand (dominant), evaluated as 0 percent disabling; residuals, excision of lipoma, right upper arm (dominant), evaluated as 0 percent disabling; and left inguinal hernia, postoperative, evaluated as 0 percent disabling. The combined disability rating is 30 percent. The Board notes that the veteran has not alleged an increase in severity of his noncompensable disabilities and there has been no medical evidence of such an increase in severity of these disabilities. As the veteran's service-connected combined disability rating is only 30 percent, he does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). However, total disability ratings for compensation may nevertheless be assigned where the schedular rating for the service-connected disability is less than 100 percent when it is found that the service-connected disability is sufficient to produce unemployability without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16. Here, the veteran alleges that he is unemployable due to his service-connected disabilities, in particular his pulmonary emphysema. The veteran was terminated from employment from the U.S. Postal Service because he failed to pass a pre- employment physical examination. Cause of the failure to pass the physical could not be obtained because the Postal Service does not keep records of pre-employment physicals. As mentioned above, evidence from the Social Security Administration showed that the veteran's benefits from that agency were terminated as the veteran was determined to be able to maintain substantially gainful employment. The veteran's Vocational and Rehabilitation folder reveals that the veteran was attending Barber College and was due to complete the course in December 1998. The Board concludes that there is insufficient medical evidence to demonstrate that service-connected disabilities alone preclude the veteran from securing or following substantially gainful employment. The sole compensably rated service-connected disability has been characterized by examiners as mild. Moreover, the veteran has other nonservice-connected disabilities that affect his employability. However, entitlement to a TDIU must be established solely on the basis of impairment arising from service-connected disorders. Blackburn v. Brown, 4 Vet. App. 395, 398 (1993). The underlying determination, moreover, is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can actually find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board therefore finds that entitlement to TDIU is not established. 38 C.F.R. §§ 3.340, 4.16. The evidence is not so evenly balanced as to raise doubt concerning any material issue. 38 U.S.C.A. § 5107(b). ORDER An evaluation in excess of 30 percent for pulmonary emphysema is denied. A total rating based on individual unemployability due to service-connected disabilities is denied. WILLIAM W. BERG Acting Member, Board of Veterans' Appeals