BVA9508082 DOCKET NO. 93-08 815 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease for purposes of entitlement to accrued benefits. 2. Entitlement to an increase in the 30 percent evaluation assigned for the residuals of a right upper lobectomy for the purposes of entitlement to accrued benefits. 3. Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. P. Gallagher, Counsel INTRODUCTION The veteran had active military service from July 1951 to July 1971. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). A rating decision by the RO in December 1991 denied entitlement to an increase in the 30 percent evaluation assigned for the residuals of the right upper lobectomy. The veteran appealed this decision. He appeared at a personal hearing in May 1992. Subsequently he died in July 1992. Later, in July 1992, a claim was received for dependency and indemnity compensation from the appellant. Following the hearing, a rating decision by the RO in November 1992 denied entitlement to all benefits currently on appeal. In view of the action taken below, the issue of an increased rating for the pulmonary pathology will be considered in the REMAND section of this document. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that the onset of the veteran's fatal chronic obstructive pulmonary disease was during service. Following the right upper lobectomy in 1966, he had continuous symptoms and the pulmonary disorder worsened. It is asserted that there is a relationship between the service connected residuals of a right upper lobectomy and the chronic obstructive pulmonary disease that caused his death. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence warrants establishment of entitlement to service connection for chronic obstructive pulmonary disease and therefore, for the cause of the veteran's death. FINDINGS OF FACT 1. The veteran's fatal chronic obstructive pulmonary disease had its onset during service and was initially noted by a respiratory consultant during service. 2. The veteran's death in July 1992 was the result of severe chronic obstructive pulmonary disease. 3. The veteran's death was due to a disorder which, as a result of this decision, is a service connected disability. CONCLUSIONS OF LAW 1. Chronic obstructive pulmonary disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991). 2. The veteran's death was the result of the service-connected chronic obstructive pulmonary disease. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 1991); 38 C.F.R. § 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we find that these claims are "well grounded" and no further development is necessary. 38 U.S.C.A. § 5107. The service medical records disclose that in 1966 the veteran developed gram-negative necrotizing pneumonia of the right upper lobe. The causative organism was Pseudomonas aeruginosa. In July 1966, the veteran underwent a right thoracotomy and right upper lobectomy. In September 1969 the veteran was referred for a respiratory evaluation after decreased breath sounds were noted in the left upper lobe. He was seen by a respiratory consultant in October 1969. It was reported he smoked approximately one pack of cigarettes per day and had done so for many years. He had an early morning nonproductive cough without a history of fever, night sweats or weight loss. There was a subjective impression that the upper respiratory infections had increased in frequency since the surgery. A physical examination was completely within normal limits. Pulmonary function tests revealed a slight reduction in the flow rates consistent with mild obstructive disease. The maximum ventilatory volume was reduced out of proportion to the flow rates in May . The examiner stated this obstructive defect in large part could be attributed to the smoking of cigarettes. Medical impressions were: 1. Abscess cavity, right upper lobe, secondary to Pseudomonas aeruginosa by history; 2. status post right upper lobectomy, secondary to Number 1; and, 3. mild obstructive airway disease. On retirement examination in January 1971 it was reported the veteran had no complications or sequelae as a result of the pneumonia in 1966. A chest X-ray at this time was normal. On a VA examination in September 1971, the veteran gave a history of in service surgery to his lungs, and reported that he had some slight dyspnea on exertion. Nonsymptomatic lobectomy residuals were diagnosed. The evidence before the Board also contains a VA counseling folder. The veteran was evaluated for vocational rehabilitation in 1987. Among the incidental information on file is a notation that the veteran had some shortness of breath on exertion. It was noted that this condition had been present for many years. The record discloses the veteran was hospitalized in an Air Force Hospital in September 1987. It was reported it was the second hospitalization. His last hospitalization was in 1975 from a vehicle accident. He was admitted through the emergency room with an acute exacerbation of chronic obstructive pulmonary disease. He had a three-week history of shortness of breath and difficulty breathing. He had been seen at the VA for this problem and was still on Theo-Dur and an inhaler. During another period of Air Force hospitalization in January 1990 it was reported he had a known history of chronic obstructive pulmonary disease for the past three years. On VA examination in September 1991, breath sounds were tubular in the right upper chest anteriorly. Otherwise there was slight dullness of the right upper chest anteriorly. The lungs were clear to auscultation and percussion. The diagnosis was postoperative residuals of the right upper lobectomy, non symptomatic. In March 1992, Keith W. Chandler, M.D., reported the veteran had been a patient of his since April 1991 when he was referred for an evaluation of his chronic obstructive pulmonary disease. He indicated that since the veteran first came to see him he had been hospitalized on several occasions at a VA hospital for treatment of suppurative bronchopulmonary infection. He suspected the veteran had bronchiectasis and had experienced repeated infections of emphysematous bullae. Recent pulmonary function tests had revealed a severe impairment. As a result of these abnormalities he regarded the veteran totally and permanently disabled. Other clinical records disclosed treatment of the veteran for chronic obstructive pulmonary disease. The death certificate discloses the veteran died at home in July 1992 and that the immediate cause of death was severe chronic obstructive pulmonary disease. An autopsy was not performed. A review of the clinical record discloses that in October 1969 it was reported the veteran suffered from mild obstructive airway disease which was manifested on pulmonary function testing by an obstructive defect. This obstructive defect was not a manifestation of the service connected condition but rather was, it is concluded in retrospect, a manifestation of early chronic obstructive pulmonary disease. The Board is aware that mild obstructive airway disease was not noted on the examination prior to retirement in 1971 or on the VA examination in late 1971. He did complain of some shortness of breath on the VA examination. It is also noted that no pulmonary function testing was performed on either of these examinations. The clinical record many years after discharge from service clearly establishes the veteran suffered from chronic obstructive pulmonary disease. Therefore, in view of the evidence the veteran had a slight reduction of flow rates consistent with mild obstructive disease, service connection may be granted for chronic obstructive pulmonary disease. 38 U.S.C.A. § 5107(b). In addition, because the death certificate discloses that the veteran died in July 1992 at home as a result of severe chronic obstructive pulmonary disease, service connection must then also be granted for the cause of the veteran's death. ORDER Service connection for chronic obstructive pulmonary disease is granted. Service connection for the cause of the veteran's death is granted. REMAND In view of the action taken above, the issue of an increased rating for pulmonary pathology for the purposes of accrued benefits is in need of additional development. Specifically, the assignment of a disability rating for all the pertinent pathology be the RO. In determining the evaluation for the purposes of accrued benefits, the provisions of 38 C.F.R. § 4.96(a) are for consideration. In view of the foregoing, this case is REMANDED to this extent and for the following action: The RO should evaluate the medical evidence for the purpose of assigning a disability rating for all of the veteran's pulmonary pathology, for the purposes of accrued benefits, in view of the action taken above. When the aforementioned development has been accomplished the case should be reviewed by the RO. In the event the benefits sought are not granted, the appellant and her representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration. No action is required of the appellant until she is notified. MICHAEL D. LYON 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).