BVA9503692 DOCKET NO. 92-04 471 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an evaluation in excess of 10 percent for chronic bronchitis from April 5, 1988 to June 30, 1989. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jennifer Lane, Associate Counsel INTRODUCTION The veteran had active service from January 1955 to January 1958, and from December 1964 to February 1965. The appeal originated with a December 1990 rating decision in which the Regional Office (RO) implemented a May 1990 Board decision which granted service connection for chronic bronchitis and assigned a 10 percent evaluation for that disability, effective April 5, 1988, and a 30 percent evaluation effective June 22, 1990. The veteran filed a notice of disagreement in February 1991, disagreeing with the evaluation assigned and the effective date. In April 1993, the Board granted a 60 percent evaluation for chronic bronchitis and remanded the issue of entitlement to an earlier effective date. In a September 1993 rating decision, the RO granted an effective date of June 30, 1989 for the 60 percent disability evaluation for chronic bronchitis. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that an evaluation in excess of 10 percent for chronic bronchitis from April 5, 1988 to June 30, 1989, is warranted. He also asserts that because he has vigorously pursued his claim since reopening said claim in April 1988, he is entitled to a 60 percent evaluation for chronic bronchitis effective the date of the reopened claim. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the record supports the granting a 30 percent evaluation for chronic bronchitis from April 5, 1988 to June 30, 1989. FINDINGS OF FACT 1. All relevant information necessary for an equitable disposition of the appeal has been developed. 2. The veteran filed a claim for entitlement to service connection for chronic bronchitis on April 5, 1988; and Board subsequently granted that claim. 3. The veteran's chronic bronchitis was productive of no more than moderately severe impairment prior to June 30, 1989. 4. The veteran's chronic bronchitis did not present an unusual or exceptional disability picture so as to render impractical the application of the regular schedular standards prior to June 30, 1989. CONCLUSION OF LAW The criteria for assigning a 30 percent evaluation for chronic bronchitis from April 5, 1988 to June 30, 1989, are met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 1991); 38 C.F.R. §§ 3.321(b), 3.400, 4.7, 4.10, Part 4, Diagnostic Codes 6600, 6603 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the claim for entitlement to an evaluation in excess of 10 percent for chronic bronchitis from April 5, 1988 to June 30, 1989, is "well-grounded" within the meaning of 38 U.S.C.A. § 5107, that is, the claim is plausible, meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board further finds that the Department of Veterans Affairs (VA) has met its duty to assist in developing the facts pertinent to that claim. 38 U.S.C.A. § 5107. The veteran filed a petition to reopen a claim for entitlement to service connection for chronic bronchitis on April 5, 1988. The Board granted service connection for chronic bronchitis in May 1990. In December 1990, the RO assigned a 10 percent evaluation for that disability, effective April 5, 1988, the date the veteran filed a reopened claim, and a 30 percent evaluation effective June 22, 1990, under the provisions of Diagnostic Code 6600-6603 of the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. After the Board granted a 60 percent evaluation for chronic bronchitis in April 1993, the RO in a September 1993 rating decision, assigned an effective date of June 30, 1989 for the 60 percent disability evaluation for chronic bronchitis as that was the date on which the veteran was prescribed oxygen. Initially, the Board notes that the RO's assigning an effective date of April 5, 1988, for the award of service connection for chronic bronchitis on the basis of a reopened claim is consistent with the applicable regulations. 38 C.F.R. § 3.400(q)(1)(ii) and (r) (1993). Moreover, it is not contended that a date earlier than April 5, 1988 is warranted for the award of service connection for chronic bronchitis. Instead, the veteran maintains that an evaluation in excess of 10 percent for chronic bronchitis from April 5, 1988 to June 30, 1989, is warranted. It also appears that he believes that he is entitled to a 60 percent evaluation for chronic bronchitis effective the date of the reopened claim because he vigorously pursued this case since the claim was reopened on April 5, 1988. Therefore, the Board will determine whether an evaluation in excess of 10 percent was warranted for chronic bronchitis on April 5, 1988. The most probative evidence in making such a determination is the medical evidence received for the purpose of reopening the claim for entitlement to service connection for chronic bronchitis which is dated prior to June 30, 1989. Chronic bronchitis is evaluated under the provisions of Diagnostic Code 6600. Under that Diagnostic Code, a 10 percent evaluation is warranted when the disability is moderate with considerable night or morning cough, slight dyspnea on exercise, and scattered bilateral rales; a 30 percent evaluation is warranted when the disability is moderately severe with persistent cough at intervals throughout the day, considerable expectoration, considerable dyspnea on exercise, rales throughout chest, and beginning chronic airway obstruction; and a 60 percent evaluation is warranted when the disability is severe with severe productive cough and dyspnea on slight exertion and pulmonary function tests indicative of severe ventilatory impairment. 38 C.F.R. Part 4. The RO has also evaluated the veteran's service-connected respiratory disability under Diagnostic Code 6603, for pulmonary emphysema. Under that Diagnostic Code, a 10 percent evaluation is warranted when the disability is mild with evidence of ventilatory impairment on pulmonary function tests and/or definite dyspnea on prolonged exertion; a 30 percent evaluation is warranted when the disability is moderate with moderate dyspnea occurring after climbing one flight of steps or walking more than one block on level surface and pulmonary function tests consistent with findings of moderate emphysema; and a 60 percent evaluation is warranted when the disability is severe with exertional dyspnea sufficient to prevent climbing one flight of steps or walking one block without stopping and ventilatory impairment of severe degree confirmed by pulmonary function tests with marked impairment of health. 38 C.F.R. Part 4. Also, 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. The medical evidence received in support of the veteran's petition to reopen the claim for entitlement to service connection for chronic bronchitis included private X-rays of the chest in February 1987. Those X-rays revealed moderate chronic obstructive pulmonary disease with a few linear scarrings in both bases. Private pulmonary function tests performed in April 1987 revealed moderate obstructive ventilation defect and mildly moderate response to bronchodilator treatment. Thus, prior to April 1988, examiners described the veteran's pulmonary disability as moderate and pulmonary function tests were consistent with findings of moderate emphysema. Therefore, the criteria for a 30 percent evaluation under Diagnostic Code 6603 were met as of April 5, 1988. However, the criteria for a 60 percent evaluation under Diagnostic Codes 6600 and 6603 were not met prior to June 30, 1989. The medical evidence dated prior to June 30, 1989 includes no evidence that the veteran's chronic bronchitis was severe with severe productive cough and dyspnea on slight exertion and pulmonary function tests indicative of severe ventilatory impairment and no evidence that the disability was severe with exertional dyspnea sufficient to prevent climbing one flight of steps or walking one block without stopping and ventilatory impairment of severe degree confirmed by pulmonary function tests with marked impairment of health. 38 C.F.R. Part 4. Furthermore, medical evidence dated prior to June 30, 1989 includes findings described as normal, good and mild rather than moderate, severe or marked. On the report of the April 1987 pulmonary function tests, it was also noted that the tests revealed normal static lung volume and diffusion capacity and that arterial blood gases revealed normal acidity (hydrogen ion concentration) and partial pressure carbon dioxide with mild hypoxemia for the veteran's age. A report of a private psychiatric evaluation in October 1987, shows that examination of the chest revealed that the lungs were clear to percussion and auscultation. Also, there was good thoracic expansion and 20 respirations per minute. A physical examination associated with a private psychiatric evaluation in April 1989 revealed some scattered rhonchi in both fields. Examination of the chest also revealed that the lungs were clear to percussion and auscultation and that respirations were 16 per minute. Additionally, according to the report of the October 1987 private psychiatric evaluation, the veteran had a long history of bronchitis and was using an inhaler and medication at that time. However, the veteran's chronic bronchitis required more serious treatment in June 1989. On June 30, 1989, the veteran was prescribed oxygen. Moreover, a private medical record dated in December 1989 shows that the veteran's ability to breathe was severely impaired. At a VA pulmonary examination in November 1990, the veteran related that his cough was worse at night and that his cough produced sputum. Additionally, a medical report of the results of pulmonary function tests performed in April 1991 includes an impression of severe obstructive ventilatory defect. Thus, the Board finds that the veteran's chronic bronchitis increased in severity on June 30, 1989, but was productive of no more than moderately severe impairment prior to that date. 38 C.F.R. §§ 3.400, 4.7, Part 4, Diagnostic Code 6600-6603. The Board has also considered the various other provisions of 38 C.F.R. Parts 3 and 4, including 38 C.F.R. §§ 3.321(b) and 4.10 in accordance with Schafrath v. Derwinski, 1 Vet.App. 589 (1991), but finds that they did not provide a basis upon which to grant more than a 10 percent evaluation prior to June 30, 1989. For example, when the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards, an extra-schedular evaluation is warranted. 38 C.F.R. § 3.321(b). However, there is no evidence that the veteran's chronic bronchitis caused marked interference with employment or required frequent hospitalizations warranting an extra-schedular evaluation higher than 10 percent prior to June 30, 1989. 38 C.F.R. § 3.321(b). According to reports of private psychiatric examinations dated in October 1987 and April 1989, the veteran had been unable to work for the previous 20 years because of emotional and psychiatric problems. Thus, the RO reviewed the evidence and granted a 60 percent evaluation for chronic bronchitis effective the date that an increase in disability had occurred. The determination of the regional office was consistent with the statute and regulations. Therefore, based upon the law and regulations, there is no doubt to be resolved. Accordingly, an evaluation in excess of 30 percent for chronic bronchitis from April 5, 1988 to June 30, 1989, is not warranted. ORDER A 30 percent evaluation for chronic bronchitis from April 5, 1988 to June 30, 1989, is granted, subject to the controlling laws and regulations governing monetary disbursements. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.