Citation Nr: 0006019 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 95-30 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a compensable evaluation for residuals of a right apical pneumothorax. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service from August 1941 through February 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO), which denied the benefit sought on appeal. By a Board remand dated June 1998, this matter was returned to the RO for additional development. Such development having been completed, this matter has been returned to the Board for resolution. FINDINGS OF FACT 1. All evidence necessary for the equitable resolution of the issue of entitlement to a compensable rating for the residuals of a right apical pneumothorax has been obtained. 2. The service-connected residuals of the veteran's right apical pneumothorax are currently asymptomatic and without respiratory manifestations. CONCLUSION OF LAW The criteria for a compensable disability evaluation for residuals of a right apical pneumothorax have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.31, 4.97, Diagnostic Code 6843 (1999); 38 C.F.R. § 4.97, Diagnostic Code 6814-6602 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran claims that he is entitled to a compensable evaluation for his disability resulting from the residuals of a right apical pneumothorax. Historically, by rating decision dated June 1995, the RO granted the veteran's 38 U.S.C.A. § 1151 claim for a pneumothorax and assigned a 100 percent evaluation from September 27, 1993 and a 0 percent disability evaluation from April 1, 1995. As a disability may require re-evaluation in accordance with changes in a veteran's condition, it is essential in determining the level of current impairment, that the disability is considered in the context of the entire recorded history. However, this is an original claim placed in appellate status by a notice of disagreement (NOD) taking exception to the initial rating award dated in June 1995. Accordingly, the veteran's claim must be deemed well grounded within the meaning of 38 U.S.C.A. § 5107(a), and VA has a duty to assist the veteran in the development of the facts pertinent to his claim. See Fenderson v. West, 12 Vet. App. 119, 127 (1999) (applying duty to assist under 38 U.S.C.A. § 5107(a) to initial rating claims); cf. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (increased rating claims). Under these circumstances, VA must attempt to obtain all such medical evidence as is necessary to evaluate the severity of the veteran's disability from the effective date of service connection to the present. Fenderson, supra., citing Goss v. Brown, 9 Vet. App. 109, 114 (1996); Floyd v. Brown, 9 Vet. App. 88, 98 (1996); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also 38 C.F.R. § 4.2 (ratings to be assigned "in the light of the whole recorded history"). This obligation was satisfied by the various VA examinations and treatment reports described below, and the Board is satisfied that all relevant facts have been properly and sufficiently developed for the equitable disposition of this claim. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). 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 (1999). In every instance where the schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In the present case, the RO evaluated the residuals of the veteran's right apical pneumothorax as being noncompensable pursuant to 38 C.F.R. § 3.41 and 38 C.F.R. § 4.97 Diagnostic Codes 6815-6602 (1996). The Board notes that it appears that the RO inadvertently indicated that the veteran was rated under DC 6815, instead of DC 6814. The nomenclature of DC 6814 corresponds with the veteran's current disability, which has been characterized as residuals of right apical pneumothorax, whereas the nomenclature of DC 6815 indicates that it is applicable in cases involving pneumonectomy. Therefore, it appears that the use of DC 6815 in the June 1995 rating decision was a clerical error and the RO actually meant to rate the veteran under DC 6814. During the pendency of the veteran's appeal, the criteria for rating disabilities of the respiratory system were revised, effective October 7, 1996. When a law or regulation changes during the pendency of an appeal, the Board must evaluate the veteran's disability under the version most favorable to the veteran, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308 (1991). As the revised regulations in this case do not allow for their retroactive application prior to October 7, 1996, the Board cannot apply the new provisions prior to that date. Rhodan v. West, 12 Vet. App. 55 (1998). In other words, the Board must review the evidence dated prior to October 7, 1996, only in light of the old regulations, but must review the evidence submitted after October 7, 1996 under both the old and newly revised regulations, using whichever version is more favorable to the veteran. Prior to the October 1996 revision, DC 6814 provided for a 100 percent disability evaluation for a spontaneous pneumothorax for six months. Thereafter, the residuals were rated analogously to bronchial asthma under DC 6602. According to the old schedular criteria for bronchial asthma under Diagnostic Code 6602, a 10 percent rating is assigned when the asthma is mild; paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks. A 30 percent rating is assigned when the asthma is moderate; asthmatic attacks rather frequent (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks. A 60 percent rating is assigned when the asthma is severe; frequent attacks of asthma (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication; more than light manual labor precluded. A 100 percent rating is assigned where the asthma is pronounced; asthmatic attacks very frequently with severe dyspnea on slight exertion between attacks and with marked loss of weight or other evidence of severe impairment of health. 38 C.F.R. 4.97, DC 6602. Effective October 7, 1996, the criteria governing the rating of respiratory disorders changed. Under the revised rating criteria pneumothorax is rated under DC 6843. A disability falling under DC 6843 is to be rated using general rating criteria for restrictive lung diseases on the following criteria which the examiner must address in terms of the findings on examination and pulmonary function testing. A 10 percent evaluation is warranted with FEV-1 of 71- to 80- percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted. A 30 percent evaluation is warranted with FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted. A 60 percent evaluation is warranted with FEV-1 of 40- to 55-percent predicted, or; FEV- 1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent evaluation is warranted with FEV-1 of less than 40 percent predicated value, or; the ration 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 predicated, 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. Note (2) states that following episodes of total spontaneous pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall continue for 3 months from the first day of the month after hospital discharge. 38 C.F.R. § 4.97, Diagnostic Code 6843, Note 2 (1999). The veteran sought treatment at the Westside VA Medical Center (VAMC) on September 20, 1993 for drainage of a renal cyst. After this procedure, the veteran developed hemoptysis for four days. Subsequently on September 23, 1993, the veteran was hospitalized with complaints of shortness of breach, dyspnea on exertion, or orthopnea. The reported differential diagnosis considered was lung injury secondary to the procedure with trial of cyst drainage versus bronchitis or other infection. During the course of the hospitalization, pulmonary consultation was obtained and a bronchoscopy was performed. The veteran then developed a small right-sided pneumothorax after the bronchoscopy. Bronchoscopy reportedly showed sternal compression of the right middle lobe and right lower lobe, but was reported to be otherwise normal. Other tests were performed, and the veteran's hemoptysis resolved. Two days before the veteran was discharged in October 1993, the veteran was referred for an Ear, Nose and Throat (ENT) consultation. It was noted on referral that the hemoptysis was resolving and the consultation was requested in order to ensure that the blood was not coming from the upper respiratory tract. A 60+ pack per year history of smoking was also noted. Following examination, it was concluded that there was no evidence of ENT source of bleeding. A computerized tomography of the veteran's chest at that time revealed right minimal pleural effusion and right basilar subsegmental atelectases as well as atherosclerotic thoracic aorta. The veteran was started empirically on Bactrim for possible bronchitis. He was noted to have responded well to therapy and was discharged in stable condition. The discharge instructions included two diagnoses: hemoptysis secondary to lung trauma from needle aspiration, and pneumothorax from needle aspiration. Upon the veteran's discharge from the hospital in October 1993, oxygen was ordered for him, but the veteran indicated that he did not need the oxygen. It was also noted at his discharge that in terms of the right apical pneumothorax, the veteran was asymptomatic. He had no signs of pneumothorax complications including shortness of breath and hemoptysis. A VA outpatient treatment record dated November 1993 shows that the veteran was diagnosed with COPD. VA hospitalization reports, progress notes and outpatient reports dated January 1990 through February 1994 show that following the September 1993 bronchoscopy, the veteran complained of chest pain, shortness of breath, soreness of the right chest wall, and of coughing up blood. In July 1994, Israel Rubinstein, M.D., an Associate Professor with the University of Illinois College of Medicine at Chicago opined that based on his review of the veteran's clinical course of treatment and based on general information regarding bronchoscopy with Wang needle aspiration, it was his opinion that while the veteran may have sustained a pneumothorax during his September-October 1993 hospitalization, he was not shown to suffer from any residuals of a pneumothorax. The bottom of this letter contains the statement "I concur" and is signed by Faiq J. Albazzaz, M.D. A February 1995 VA examination report shows that while the veteran subjectively reported an occasional cough productive of white phlegm, pain in his right lung, and shortness of breath after walking two blocks, he denied wheezing and indicated that there had been no recurrence of hemoptysis. Objective findings included x-rays which revealed mild COPD without acute distress, and the examiner noted that the veteran had a productive sounding cough throughout the examination. The veteran was diagnosed with persistent pleuritic pain and a history of a punctured lung. From October 1995 through April 1998, the veteran continued to complain of sharp pain in the right side of his back; shortness of breath after walking three blocks; nightmares regarding the procedure during which his lung was punctured; weight loss of approximately 40 pounds, feelings of weakness and dizziness (October 1995 RO hearing transcript) and pain in his right lung (April 1998 Board hearing transcript). In March 1998, the veteran was diagnosed with chronic COPD and prescribed an inhaler (Provident Hospital of Cook County Hospital records). Upon the Board's June 1998 remand, the veteran was afforded a second VA examination in September 1999. The Board determined that remand was appropriate in order to obtain outstanding treatment records and to afford the veteran another VA examination. Specifically, the VA examiner was requested (1) to the extent possible to give an opinion as to whether the veteran's pulmonary complaints are more likely attributable to residuals of his right apical pneumothorax or to another disorder; (2) to comment on the veteran's assertion that he sustained two separate injuries to his lungs, the first being on September 20, 1993 in connection with an attempted renal cyst drainage and the second on September 27, 1993 when the veteran underwent a bronchoscopy, and finally (3) to express an opinion regarding the relationship if any between any injury sustained by the veteran and any residual symptomatology. In the June 1998 Remand, the Board indicated that the veteran's claims file was to be made available to the VA examiner for review. In the September 1999 VA examination report, there is conflicting information as to what records were reviewed by the examiner. In Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims (Court) indicated that a remand by the Board confers on the veteran, as a matter of law, the right to compliance. In this case, while it is unclear as to whether the veteran's entire claims file was reviewed, the Board is satisfied that the veteran has not been prejudiced and that a remand to the RO for full compliance is not necessary. The Board notes that based on the original findings made in the September 1999 VA examination report and a notation on the report, the VA examiner was able to review treatment records documenting the attempt to aspirate a renal cyst in 1993 and the examiner was also able to review records documenting the bronchoscopy and subsequent developing pneumothorax. Therefore, while the veteran's claims file may not have been reviewed in its entirety, the examiner was able to render opinions based on a review of the most pertinent evidence of record with regard to the veteran's claim. As such, the Board is satisfied that the veteran has not been prejudiced. During the September 1999 examination, the veteran gave the following subjective complaints: mid-thoracic back pain, moderate shortness of breath for which he utilized a bronchodilator inhaler, a little wheezing in the morning, and a cough productive of a few teaspoons of white sputum per day. Physical examination showed no wheezing, coughing or apparent shortness of breath. Pulmonary function tests conducted during the examination showed that the veteran had a Forced Expiratory Volume (FEV1) of 76 percent of predicated value pre-drug and 78 percent of predicated value post-drug. The veteran's FEV1-Forced Vital Capacity (FEV1-FVC) was 104 percent of predicated value pre-drug and 102 percent of predicated value post-drug. The examiner diagnosed the veteran with chronic COPD and compression deformity of the thoracic spine. The examiner indicated that the veteran had moderate dyspnea relieved by a bronchodilator. Further, it was the examiner's opinion that the veteran's right apical pneumothorax was not the cause of the veteran's chest complaints or of his COPD. He did not believe that the veteran's chest pain was pleuritic in nature. He found it unlikely that the bronchoscopy or attempted renal cyst drainage resulted in any clinical lung problems. He found the current level of disability resulting from the right apical pneumothorax to be 0 percent. The examiner characterized the severity of the right apical pneumothorax as mild and asymptomatic and stated that the veteran's pulmonary complaints were best attributed to residuals of COPD and thoracic spine disorder. Additionally, the examiner opined that it was unlikely that the bronchoscopy or the attempted renal cyst drainage resulted in any clinical lung disorder. In an October 1999 addendum, the examiner indicated that he had found and reviewed the bronchoscopy report and found that the pneumothorax that occurred as a result of that procedure was not the basis for any pulmonary symptoms or complaints. After considering the facts of this case, the Board is unable to find a basis for entitlement to a compensable rating for residuals of a right apical pneumothorax. Prior to October 17, 1996, the veteran experienced shortness of breath, pain in his right lung and right side of his back, and hemoptysis, which resolved. The record does not show that the veteran was ever diagnosed with asthma, or that his disability picture prior to October 7, 1996 was productive of symptoms that could be classified as "mild" asthma, thereby warranting a 10 percent disability rating pursuant to DC 6602. Therefore, the Board finds that the RO properly assigned a noncompensable evaluation under DC 6602. The Board also finds that the most recent evidence of record, that is evidence after October 7, 1996, shows that the veteran's disability picture does not warrant a compensable disability evaluation under either the old or the revised criteria. In terms of the old criteria, there is no evidence after October 7, 1996 that the veteran was ever diagnosed with asthma, or that his disability is productive of any symptomatology due to the service-connected disability at issue that could be classified as mild asthma. Further, while the veteran's FEV1 was 76 and 78 percent of predicated value at the September 1999 VA examination (a result which would otherwise warrant a 10 percent rating under the new rating criteria), it appears clear from the medical evidence that it is the veteran's nonservice-connected COPD which is productive of such respiratory impairment, not his service- connected residuals of a right apical pneumothorax. Likewise, the evidence of record shows that the residuals of the veteran's right apical pneumothorax have been essentially described as asymptomatic. In sum, the Board believes that the preponderance of the evidence is against entitlement to a compensable rating for residuals of a right apical pneumothorax. It follows that there is not such a state of equipoise of the positive evidence with the negative evidence to otherwise permit a favorable resolution on this issue. 38 U.S.C.A. § 5107(b). The potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (1999). In this regard, the Board finds that there has been no showing by the veteran that his service connected disorder has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a compensable disability evaluation for residuals of a right apical pneumothorax is denied. S. L. KENNEDY Member, Board of Veterans' Appeals