BVA9505829 DOCKET NO. 90-30 036 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for the pulmonary disorders of a granuloma on the lung and chronic obstructive pulmonary disease (COPD). 2. Entitlement to an increased evaluation for a cavernous hemangioma of the right forearm, wrist, and hand, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD William H. Hickman, Associate Counsel INTRODUCTION The veteran served on active duty between June 1955 and September 1967, and from July 1974 to September 1974. Between September 1967 and June 1974, and October 1974 and June 1988, the veteran had various periods of active and inactive duty for training with the reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 1990, and subsequent rating decisions, of the Department of Veterans Affairs (VA) Nashville, Tennessee, Regional Office (RO). The case was previously before the Board in May 1991 and November 1992 at which times it was remanded for further development. The case is now before the Board for appellate review. An RO rating decision dated in May 1994 denied the veteran service connection for sinusitis. A notice of disagreement has not been filed with respect to this issue and it is not before the Board at this time. CONTENTIONS OF APPELLANT ON APPEAL With respect to the claim for service connection for a granuloma on the lung, it is contended, in essence, that the veteran's service medical records indicate that a granuloma formed on the veteran's right lung during a period of the veteran's reserve service, and therefore, service connection for this disorder is warranted. With respect to the claim for service connection for COPD, it is alleged, essentially, that a disorder for which treatment was administered the veteran by military doctors during his reserve service should be service-connected. This disorder was a granuloma on the right lung and caused the veteran to have pneumothorax, which in turn proximately resulted in the formation of COPD. With respect to the claim for an increased evaluation for a cavernous hemangioma of the upper right extremity with varicose veins, it is alleged, essentially, that this disorder causes the veteran's right arm to be chronically swollen and painful and that these symptoms, under the applicable rating code, warrant a higher evaluation and, therefore, an increased evaluation for this disorder should be granted. Additionally, the veteran's representative has contended that the case should be remanded in order to conduct a search for all of the service medical records from the veteran's period of active duty service. 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. 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 evidentiary record is against the veteran's claim for service connection for a granuloma of the lung and COPD, and for a higher evaluation for a hemangioma of the right forearm, wrist, and hand. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2 The evidentiary record does not demonstrate that the granuloma, which was first detected on a military reserve X-ray in 1984, had its onset during active duty or active duty for training. 3. COPD did not have its onset during active duty or active duty for training. 4. Neither the granuloma nor COPD is etiologically related to any incident of active duty or active duty for training. 5. The evidentiary record does not demonstrate that the veteran's hemangioma of the right forearm, wrist, and hand is characterized by persistent swelling. CONCLUSIONS OF LAW 1. A granuloma on the lung was not incurred in or aggravated during service. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303(b)(d) (1994). 2. COPD was not incurred in or aggravated during service. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303(b)(d) (1994). 3. The criteria for an evaluation higher than 30 percent for a cavernous hemangioma of the right forearm, wrist, and hand have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.20, Part 4, Diagnostic Code 7121 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are well grounded. That is, they are claims which are plausible and capable of substantiation. All relevant facts have been properly developed and no further assistance to the veteran, including additional VA examinations, is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). I. Service Connection for a Granuloma of the lung and for COPD. A.. The Law and Regulations Under the applicable law and regulations, service connection may be established for a chronic disability resulting from personal injury suffered or disease contracted during service in the line of active duty or active duty for training, or for chronic disability resulting from personal injury suffered during inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 1991); 38 C.F.R. § 3.303(b) (1994). Additionally, VA regulations provide that service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d)(1993). B. The Veteran's Period of Active Duty Service. The veteran's active duty service medical records from his period of service from 1955 to 1967 are not available with the exception of the results of a service medical evaluation board held in 1967. However, it is not contended that the claimed pathologies arose during the veteran's term of active duty, nor do the service medical records from the veteran's period of reserve service demonstrate the appearance of the claimed pathologies prior to 1983. Since the Board, in May 1991, remanded the case specifically to search for the active duty service medical records, and since that search yielded no results, and since the medical evidence of record indicates that the medical records prior to 1983 would not be pertinent to the claim, no further search for the active duty service medical records will be made. Additionally, since the evidentiary record does not demonstrate the existence of either claimed pathology prior to the decade of the 1980's, long after the veteran terminated active duty service, service connection for the claimed disorders on the basis of active duty service is denied. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (b)(d) (1994). C. The Veteran's Period of Reserve Service. The reports of annual physical evaluations conducted on the veteran during his reserve service between 1978 and 1983 do not demonstrate the existence of pulmonary pathology. In April 1986 the veteran underwent a chest X-ray at a service hospital. This reported the presence of 19 mm. nodular density in the lower right chest area. Based on a second X-ray, it was thought that the density was on the right lobe of the lung. The physician reviewing the results of the X-ray also discussed the reports of radiographic studies done in 1985 and in 1984. The study in 1984 suggests it was done in conjunction with an annual military physical evaluation. He indicated that the density appeared on both of these films though to a lesser degree. He also reviewed a film from April 1983 and reported, essentially, that this study was negative for the density. In a letter dated in May 1986, Joe Wilhite, M.D., reported that the veteran underwent a needle biopsy of the right lower lobe at Millington Hospital, with the final diagnosis being of an inactive granuloma awaiting cultures. He further stated that complications occurred because of a pneumothorax which re- expanded. Reserve medical records confirm the statements of Dr. Wilhite, M.D. A record dated in May 1986 indicates the veteran developed pneumothorax secondary to a needle biopsy. The report of a service radiography study dated in June 1986 noted that the right lung nodule was still present, but that no pneumothorax was present. Impression was of stable nodule right lung--no pneumothorax. The report of reserve retirement physical examination included the results of radiographic studies undertaken in February 1988. This confirmed the presence of a 2 cm. nodule within the right lung. Also reported was right lung volume loss involving the lower right lobe and several linear densities which were seen as possibly representing areas of parenchymal fibrosis. Also noted was the presence of pleural thickening consistent with chronic pleural scarring. The impression was of: a 2 cm. nodule of the right middle lobe, pleural atelectasis and parenchymal scarring of the right base. VA outpatient medical records from the VA medical center in Memphis, Tennessee, and VA hospital discharge reports from the same facility dated in March and April 1990, reveal that the veteran was diagnosed as having COPD as well as respiratory failure. In November 1993 the Board remanded the case in order to ascertain what pulmonary disorders were currently present, and to obtain a medical opinion as to whether any of the currently diagnosed disorders were etiologically related to the diagnosed pulmonary pathology reflected in the reserve service medical records. Following a VA examination, conducted in April 1994, the veteran was diagnosed as having, in pertinent part: severe COPD with oxygen dependency; history of right solitary pulmonary nodule considered benign for five years; history of pneumothorax following biopsy of the right solitary pulmonary nodule; and history of empyema on the right requiring surgical drainage. The physician offered the opinion that the combination of these processes had led to severely impaired pulmonary function, and as a result the veteran was severely crippled and unable to carry out any functional activity. Since there is some indication that the COPD may have been precipitated, at least in part, by the granuloma and the pneumothorax arising during the diagnostic workup, the veteran can prevail if either the granuloma or COPD had its onset during active duty or active duty for training. In order for the granuloma or COPD to be service-connected, the evidentiary record must demonstrate that the disorder arose while the veteran was on active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 1991). With respect to the veteran's periods of active duty for training, the service personnel records in evidence indicate that between July 1983 and July 1984 the veteran had sixteen days of active duty for training (unspecified as to when), and between July 1984 and July 1985 he had zero days of active duty for training, and that between July 1985 and July 1986 he had 14 days of active duty for training which were accomplished between July 28, 1985, and August 10, 1985. No active duty for training is indicated for the month of May 1986, when the record reflects the veteran underwent the needle biopsy at a service medical facility. According to the physician, who performed the radiographic studies on the veteran in April 1986, and who then reviewed previous service X- ray studies, the granuloma first appears on service X-rays taken at the time of an annual military physical evaluation done in 1984. A copy of the veteran's annual military physical evaluation done in 1984 is of record and it is dated in April 1984. Therefore, the 1984 X-rays studies referred to by the reviewing physician in 1986 also will be assumed to be dated in April 1984. Since the available service personnel records do not denote that the veteran served on active duty for training other than in the months of July and August and the veteran does not claim that he was on active duty for training in April 1984, the granuloma, first detected in April 1984, was not first manifest during a period of active duty for training. In similar fashion, the pneumothorax arising in May 1986 and COPD have not been found to have been in existence, according to the medical evidence of record, during a period when the veteran was on active duty for training. Accordingly, service connection cannot be granted for either pathology on the basis that it arose as the result of active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303(b)(d) (1994). In reaching this decision the Board has considered its obligation of affording the veteran the benefit of any doubt as mandated by 38 U.S.C.A. § 5107(b). However, the evidentiary record does not demonstrate an approximate balance of positive and negative evidence so as to warrant resolution of the issue in favor of the appellant. II. The Claim for an Increased Evaluation for the Service- Connected Cavernous Hemangioma. A review of the service medical records indicates that, pursuant to the findings of a service physical evaluation board, the veteran was separated from active duty in September 1967 because of being found physically unfit to perform his duties due to the presence of a cavernous hemangioma of the right forearm, wrist, and hand. He continued to serve in the reserve forces up through June of 1988. The reports of the annual reserve physical examinations, dated between 1978 and 1988, indicate that the condition was noted, but these reports did not indicate that the disorder was considered to be disqualifying from reserve duty. In June 1988 the veteran retired from the military. In January 1990 he filed a claim for the disorder. An RO rating decision dated in April 1990 awarded the veteran service connection for a cavernous hemangioma of the right forearm, wrist, and hand, with varicose veins, and assigned a non-compensable rating. Based on the report of a VA dermatological examination accomplished in October 1991, which indicated that the hemangioma was extensive, that it intermittently swelled and caused the veteran pain, and that the swelling precluded the veteran from closing his hand, an RO rating decision dated in November 1991 assigned the veteran a 30 percent evaluation for the disorder. The veteran underwent another VA examination in April 1994. He complained that the right hand palmar lesion became hard and tender thus making it difficult for him to grip anything. On physical examination it was reported that from the right elbow to the right hand the veteran had numerous purple venous lesions which on compression would empty and fill back up. These were described as mildly tender. Similar lesions were reported on the palm of the right hand, one of which, in the palm's center, was indicated as being tender. Numerous lesions were reported on the right hand's little finger, but arterial circulation was described as good. The veteran was able to make a complete fist, and he had no neurologic deficit in the upper right extremity. Radiographic studies reported that there were multiple calcifications in parts of the cavernous hemangioma. The diagnosis was: cavernous hemangioma of the right distal arm, right forearm, right wrist, and right hand. The examiner remarked that the lesion would continue to get slowly larger and that the veteran's palmar symptoms would continue. Disability evaluations are based upon a comparison of clinical findings with the applicable schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, (1994). When the schedular criteria does not list the disorder in question, it can be rated by analogy to the criteria listed for a similar disorder. 38 C.F.R. § 4.20 (1994). The rating schedule does not contain a diagnostic code for hemangioma. The disorders of phlebitis or thrombophlebitis can be considered analogous to the veteran's disorder since they involve venous pathology with symptoms of pain, swelling and discoloration. Under 38 C.F.R. Part 4, Diagnostic Code 7121 (1994), phlebitis, or thrombophlebitis, with symptoms of persistent swelling subsiding only very slightly and incompletely with recumbency elevation with pigmentation cyanosis, eczema or ulceration warrants a 60 percent evaluation. If there is persistent swelling of the arm or forearm, increased in the dependent position, with moderate discoloration, pigmentation, or cyanosis a 30 percent evaluation is warranted. A review of the VA examination reports in 1991 and 1994 shows that the veteran has swelling in the area of the hemangioma. He has also described the area as hard and tender. Apparently these symptoms make it difficult for him to grip things. Since swelling is not always found on physical examination, it can be concluded that the veteran does not have persistent swelling but rather intermittent. The basic difference between the criteria for a 30 percent rating and a 60 percent rating is the nature of the swelling and condition of the skin. In either case the swelling should be persistent but for the higher rating it must be shown that the swelling subsides only slightly. The higher rating could also be justified if there were eczema or ulceration. In view of the fact that the swelling is intermittent and there is no eczema or ulceration, there is no basis to consider the next higher rating of 60 percent. The current rating is adequate for compensating the veteran for the pigmentation and discoloration of the skin and swelling he currently experiences. The Board has also considered whether the veteran is entitled to an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) which provide that compensation can be awarded on an extraschedular basis if the evidentiary record demonstrates the existence of exceptional circumstances such as the service- connected disorder requiring frequent periods of hospitalization, or substantially interfering with the veteran's employment. Since the evidentiary record does not demonstrate such circumstances in this case a rating higher than 30 percent an extraschedular basis is not warranted. In reaching this decision the Board has considered its obligation of affording the veteran the benefit of any doubt as mandated by 38 U.S.C.A. § 5107(b). However, the evidentiary record does not demonstrate an approximate balance of positive and negative evidence so as to warrant resolution of the issue in favor of the appellant. ORDER Service connection for a granuloma of the lung, and chronic obstructive pulmonary disease, is denied. An increased evaluation for a hemangioma of the right forearm, wrist, and hand is denied. JAN DONSBACH 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.