Citation Nr: 0000289 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 95-09 627A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for the residuals of a shell fragment wound to the right pleural cavity, currently evaluated as 20 percent disabling. 2. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.D. Jackson, Counsel INTRODUCTION The veteran had active service from March 1967 to March 1969 and May 1969 to September 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision from the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The residuals of pleural cavity injury are no more than moderate in degree. 2. Pulmonary test functions results indicated that the FEV1 was 56 percent of predicted and FEV1/FVC was 71 percent. CONCLUSION OF LAW The criteria for a 30 percent disability rating for the residuals of a shell fragment wound to the right pleural cavity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.97, Diagnostic Codes 5321 (in effect prior to July 3, 1997); and as amended, 62 Fed.Reg. 30239 et seq. (June 3, 1997) (effective July 3, 1997) and 38 C.F.R. § 4.97, Diagnostic Code 6818 (in effect prior to October 7, 1996); and as amended 61 Fed. Reg. 46720 et seq. Diagnostic Code 6843 (effective October 7, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that the RO should have assigned a disability rating higher than 20 percent for the residuals of a shell fragment wound to the pleural cavity. At the February 1996 personal hearing, he stated that his breathing is impaired and he also has morning coughing spells. The claim for an increased evaluation is well grounded if the appellant indicates that he has suffered increased disability. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992); Jones v. Brown, 7 Vet.App. 134, 138 (1994). It is essential in the evaluation of a disability that each disability be viewed in relationship to its history. 38 C.F.R. § 4.1 (1999). The veteran sustained fragment wounds to the right arm and chest in April 1968. He was treated for hemopneumothorax and the wounds were debrided. X-ray revealed metallic fragments lying in the soft tissue over the right hemothorax; otherwise it was normal. Based upon service records, the RO, in a July 1977 rating decision, granted service connection for the residuals of a laceration scar and wound to the right chest, contusions of the right lung and scar donor site of the right thigh, assigning a noncompensable evaluation. The veteran underwent VA examination in May 1978. X-ray revealed a small metallic fragment in the right anterior chest wall. In a June 1978 rating decision, the veteran's disability was re-evaluated and the various disabilities were separated. He was granted service connection for residuals of a shell fragment wound to the right pleural cavity and residuals of a shell fragment wound to the right anterior chest wall, Muscle Group II. The RO assigned a 20 percent disability evaluation for each disability, effective from March 1977. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service- connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. See 38 C.F.R. § 4.14 (1999). In May 1997, the Board remanded this case. The RO was requested to apprise the veteran of the new laws and regulation that pertained to respiratory disabilities under Diagnostic Code 6818. Besides providing a SSOC that contained the new respiratory regulations, it appears that the RO also considered this disability under Diagnostic Code 5321, as the RO penciled in this diagnostic code on the November 1996 rating decision sheet. It does not appear that the RO supplied the veteran with the regulations that pertain to muscle injuries. Diagnostic Code 5321 concerns injuries to Muscle Group XXI, muscles of respiration (thoracic muscle group). It provides a 20 percent rating for moderately severe or severe injuries. This is the maximum rating for this diagnostic code under the old and the new rating criteria. 38 C.F.R. Part 4, Diagnostic Code 5321. While the veteran was not supplied with the laws and regulations that pertain to the muscle injuries, in this case I do not find that this was prejudicial to the veteran as (1) he will be granted a 30 percent disability rating under Diagnostic Code 6843, which is higher than possible under Diagnostic Code 5321, (2) 20 percent is the maximum rating under Diagnostic Code 5321, and (3) separate ratings under Diagnostic Codes 5321 and 6843 may not be assigned. Consequently, no useful purpose would be served by remanding the claim to the RO for what would be a mere pro forma consideration of the criteria for evaluating muscle injury. Accordingly, a Remand for this purpose is not warranted. See Bernard v. Brown, 4 Vet. App. 384 (1993). During the pendency of the case, the laws and regulations concerning muscle injuries have also changed. Changes to the regulations for evaluating muscle injuries were effective in July 1997 and after being reviewed and compared with the previous criteria are found to offer no substantive benefit. 62 Fed. Reg. 30235 (June 3, 1997). The Board recognizes that the recently revised rating criteria for muscle injuries were in effect prior to the Board's review and were not reviewed initially by the RO. The revised regulations, as finally issued, were consistent with VA's intention, as expressed in the published proposal to amend, to condense and clarify the regulations rather than substantively amend them. See, 62 Fed. Reg. 30235 (June 3, 1997) and 58 Fed. Reg. 33235 (June 16, 1993). Therefore, viewed together, the newly published criteria offer no substantive revision and are seen as no more or less favorable to the appellant than the rating provisions previously in effect. Bernard v. Brown, 4 Vet. App. 384 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991). In any event a substantive change to a regulation could not be applied earlier than its effective date. Rhodan v. West, 12 Vet. App. 55 (1998). By regulatory amendment effective October 7, 1996, substantive changes were made to the schedular criteria for evaluating diseases of the respiratory system, as set forth in 38 C.F.R. § 4.97. See 61 Fed. Reg. 46720-46731 (1996). Prior to October 7, 1996, pleural cavity injuries such as gunshot wounds were rated under Diagnostic Code 6818. A 20 percent rating was warranted for a moderate injury, with bullet or missile retained in lung, with pain or discomfort on exertion; or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion. A 40 percent rating was warranted for a moderately-severe injury with pain in chest and dyspnea on moderate exertion (exercise tolerance test), adhesions of diaphragm, with excursions restricted, moderate myocardial deficiency, and one or more of the following: thickened pleura, restricted expansion of lower chest, compensating contralateral emphysema, deformity of chest, scoliosis, hemoptysis at intervals. A 60 percent rating was warranted for a severe injury, with tachycardia, dyspnea or cyanosis on slight exertion, adhesions of diaphragm or pericardium with marked restriction of excursion, or poor response to exercise. A 100 percent rating was warranted when residuals were totally incapacitating. 38 C.F.R. § 4.97, Diagnostic Code 6818. A note associated with that diagnostic code indicates that disability persists in penetrating chest wounds, with or without retained missile, in proportion to interference with respiration and circulation, which may become apparent after slight exertion or only under extra stress. Records of examination both before and after exertion, controlled with fluoroscopic and proper blood pressure determination, are essential for proper evaluation of disability. Exercise tolerance tests should have regard to both dyspnea on exertion and to continued acceleration of pulse rate beyond physiological limits. Id. The new criteria deleted Diagnostic Code 6818, which were the criteria for evaluating pleural cavity injury. The term "pleural cavity injury" was reclassified as "traumatic chest wall defect, pneumothorax, hernia, etc." and assigned Diagnostic Code number 6843. Pleural cavity injuries and other disorders under Diagnostic Codes 6840 through 6845 are now evaluated under a general rating formula for restrictive lung disease. Under the new rating criteria, which were effective from October 7, 1996, restrictive lung disease is primarily rated according to the degree of impairment on pulmonary function tests. A 10 percent rating is warranted where pulmonary function testing reveal that FEV-1 is 71 to 80 percent predicted; FEV-1/FVC is 71 to 80 percent; or where DLCO (SB) is 66 to 80 percent predicted. A 30 percent rating is warranted where pulmonary function testing reveal that FEV-1 is 56 to 70 percent predicted; FEV-1/FVC is 56 to 70 percent; or where DLCO (SB) is 56 to 65 percent predicted. A 60 percent rating is warranted where pulmonary function testing reveal that FEV-1 is 40 to 55 percent predicted; FEV-1/FVC is 40 to 55 percent; or where DLCO (SB) is 56 to 65 percent predicted. 38 C.F.R. § 4.97, Diagnostic Code 6843 (1999). A 100 percent rating is warranted where pulmonary function testing reveal that FEV-1 is less than 40 percent predicted; FEV-1/FVC is less than 40 percent; where DLCO (SB) is 40 percent predicted; where maximum exercise capacity is less than 15ml/kg/min oxygen consumption; where there is cor pulmonale (right heart failure); where there is right ventricular hypertrophy; where there is pulmonary hypertension; (shown by echo or cardiac catheterization); where there are episodes of acute respiratory failure; or where outpatient oxygen therapy is required. Id. A note associated with Diagnostic Code 6845 states that gunshot wounds of the pleural cavity with bullet or missile retained in the lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of the diaphragm or of lower chest expansion shall be rated at least 20 percent disabling. These provisions also provide that disabling injuries of shoulder girdle muscles (Muscle 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. 38 C.F.R. § 4.97, Diagnostic Code 6843 (1999). Where the law and regulations change while a case is pending, the version most favorable to the claimant applies, absent congressional authority to the contrary. See Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). Accordingly, the Board will consider the veteran's claim for an increased rating under both the old and the new rating criteria. In May 1994, the veteran underwent VA examination, which revealed a 0.5 x 1.5-centimeter irregular well healed scar in the right chest. There was no palpable foreign body or chest wall tenderness. The lungs was clear and full bilaterally. VA outpatient records dated between December 1995 and March 1996 relate that the veteran received hospital and outpatient treatment for left lower lobe pneumonia. In January 1996, a VA pulmonary function test was performed. The consultation report indicated that the FVC was decreased and normal DLCO. There was mild obstruction without reversibility. There was a decreased volume throughout with no significant air trapping. A February 1996 radiological study revealed a small metallic fragment in the right lower chest. There was elevation of the hemidiaphragm that was considered due to phrenic nerve paralysis or injury. A naval hospital consultation report dated in June 1996 shows that the veteran was evaluated after complaints of dyspnea. He complained of tightness in his chest on breathing. He stated that he had a chronic cough that was productive of thick white sputum. On physical examination, the lungs were clear with occasional rhonchi. There were no expiratory wheezes. There was elevated right hemidiaphragm by percussion with 1-2 centimeter of diaphragmatic excursion. The examiner commented that the veteran had obstructive restrictive pulmonary disease. The restrictive element of his lung disease was considered moderate in nature with the largest contributions attributed to obesity, ascites, elevated right hemidiaphragm and his right chest wall injury. More importantly, the veteran underwent pulmonary function testing. Pulmonary function test results showed that the FEV1 was 56 percent of the predicted and the FEV1/FVC was 71 percent. The FEV1 of 56 percent post medication supports the assignment of a 30 percent rating. The FEV1/FVC of 71 percent only supports a rating of 10 percent, but a FEV1/FVC of 70 percent would support a 30 percent rating. When there is a question as to which of two evaluations should 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 (1999). Based on the foregoing evidence, I conclude that the pulmonary symptoms more nearly approximate the criteria for a 30 percent rating under Diagnostic Code 6843. I also find that the veteran is not entitled to a higher evaluation under either the new or old diagnostic codes. There is no evidence of adhesions of the diaphragm, restricted excursions, moderate myocardial deficiency, compensating contralateral emphysema, deformity of the chest, scoliosis, or hemoptysis as described under the old criteria. Nor does the clinical results of the pulmonary function test approximate that required for a higher rating. Therefore, a higher rating is not warranted under any applicable diagnostic code. In Floyd v. Brown, 9 Vet. App. 88 (1996), the Court held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law and regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or from reaching such a conclusion on its own. Moreover, the Court did not find the Board's denial of an extraschedular rating in the first instance prejudicial to the veteran, as the question of an extraschedular rating is a component of the appellant's claim and the appellant had full opportunity to present the increased-rating claim before the RO. Bagwell at 339. Consequently, the Board will consider whether the potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In this case, the evidence does not suggest that the veteran's disability produces such an exceptional or unusual disability picture as to render impractical the applicability of the regular schedular standard, thereby warranting the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1999). This case does not present factors such as frequent periods of hospitalization or marked interference with employment. In regards to industrial impairment, the Board notes that the veteran has submitted several statements, e.g., from a former employer and from a physician, to the effect that the veteran was unable to work due to his physical disabilities. The veteran has applied for unemployability based on his service- connected disabilities; it is not contended or shown that this one disability, alone, is so unusual as to present a marked interference with the veteran's employment to such an extent that he is entitled to extraschedular consideration. Moreover, a review of the claims file does not show that this service-connected disorder has resulted in hospitalization. Although the veteran has received outpatient medical care for his disability it has not been shown to require extensive treatment or hospitalization. Further, there were no symptoms reported that could be considered disabling. As pointed out above, the veteran is adequately compensated by the 30 percent evaluation that has been granted by this decision. Neither his statements nor the medical records indicate that the disability warrants the assignment of an extraschedular evaluation. ORDER Entitlement to a 30 percent evaluation for the residuals of a shell fragment wound to the right pleural cavity is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. REMAND In light of the grant of the 30 percent disability for the residuals of a shell fragment wound to the right pleural cavity, the issue of a total rating based on unemployability must be reconsidered. The case is REMANDED to the RO for the following action: The RO should readjudicate the veteran's claim for a total rating for compensation purposes based on individual unemployability. If this benefit remains denied, the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant needs take no action unless otherwise notified. The appellant may present additional evidence or argument while the case is in remand status at the RO. Cf. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. MARY GALLAGHER Member, Board of Veterans' Appeals