BVA9505661 DOCKET NO. 92-01 527 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 60 percent for bronchial asthma, emphysema, chronic obstructive pulmonary disease (COPD), with chronic bronchitis. 2. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Margaret L. Peak, Associate Counsel INTRODUCTION The veteran had active service from September 1943 to July 1945. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In February 1993, the case was remanded for further development. The claim was returned to the Board and docketed in January 1995, and is now ready for appellate review. CONTENTIONS The veteran disagrees with the decision of the RO that denied him a disability rating in excess of 60 percent, and a total disability rating for bronchial asthma, emphysema, and COPD, with chronic bronchitis based upon individual unemployability. He maintains that even minimal exertion makes him short of breath. He claims that increasing shortness of breath on exertion in the last five years has precluded him from maintaining substantially gainful employment during that period. 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 preponderance of the evidence is against an increased rating for bronchial asthma, emphysema and COPD with bronchitis or for assignment of a total disability rating based on individual unemployability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained by the RO. 2. Bronchial asthma, emphysema, and COPD, with chronic bronchitis are no more than severe, causing asthma attacks weekly, marked dyspnea on exertion between attacks with only temporary relief by medication. 3. The veteran's lone service-connected disability of bronchial asthma, emphysema, and COPD, with chronic bronchitis, currently rated as 60 percent disabling, does not, by itself, preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. An evaluation in excess of 60 percent for bronchial asthma, emphysema, and COPD, with chronic bronchitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, Part 4, Code 6602 (1994). 2. The criteria for the assignment of a total disability rating based on individual unemployability have not been met. 38 C.F.R. §§ 3.321(b)(1), 3.340, 3.341, 4.16, (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking a disability rating in excess of 60 percent for bronchial asthma, emphysema, and COPD, with chronic bronchitis. He is also seeking a total rating based on individual unemployability due to the same disorder. As an initial matter, the Board finds his claims to be "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is to say, he has presented claims that are not implausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the VA's duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). However, the preponderance of the evidence warrants neither the assignment of an increased rating, nor the grant of a total rating based on individual unemployability. I. Increased Rating In accordance with 38 C.F.R. §§ 4.1, 4.2, (1993) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of bronchial asthma, emphysema, and COPD, with chronic bronchitis. The Board has found nothing in the historical record that would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. The veteran was granted service connection for bronchial asthma, based on aggravation during service, and rated as 10 percent disabling from the time of his separation from service in July 1945. The disorder was rated at 30 percent from April 1946. From 1977, the disability was characterized as bronchial asthma with bronchitis and COPD, and was rated as 60 percent disabling. The veteran's most recent request to increase his rating was received in April 1991. A VA examination was conducted in September 1991. At that time, he stated that he had a 10 to 20 year history of frequent shortness of breath and cough. He stated that the episodes had become more frequent in the last five years, with almost weekly episodes of "getting my breath." He used an "02 concentrator" at home for acute episodes. He stated that hot, humid weather caused increased shortness of breath, as did exertion or attempting to walk up stairs. He stated that shortness of breath would commence after walking less than one block. Chest X-rays showed hyperlucent changes in the lung at the left base, along with some flattening of the left hemidiaphragm, compatible with some degree of emphysematous changes. There was an area of streaky density at the right base, which was thought possibly to have been secondary to streaky atelectasis or fibrosis. The changes in the lung were consistent with chronic changes, and no acute pneumonia was noted. The veteran reported a frequent cough with white sputum production, without hemoptysis. He slept on two pillows to aid breathing. It was noted that he was able to ambulate approximately 100 feet without any significant shortness of breath. The examination revealed decreased breath sounds bilaterally with scattered rhonchi. Expiratory wheezing was noted at both bases. He was on various expiratory medications as well as inhalers. The diagnoses were COPD and bronchial asthma. An employment statement of September 1991 from Marion Fabrics, Inc., reveals that the veteran quit work in June 1984 in order to accept other work. In the November 1991 decision, the RO continued the 60 percent rating, characterizing the disability as bronchial asthma, emphysema, and COPD, with chronic bronchitis. Individual unemployability was not found, and the veteran appealed. When the claim was first before the Board, it was noted that medical conclusions found in a letter from a private physician were not support by clinical documentation. On remand, the RO was instructed to obtain copies of clinical records of all treatment afforded the veteran by the private physician in recent years. Following that, the RO was to schedule the veteran for a special respiratory examination. Chest X-rays, pulmonary function testing, and any other indicated studies were to be done before the RO readjudicated the claim. Records were obtained from the private physician that were dated from 1984 to 1993. These show that he was followed for a variety of ailments through these years. In addition to his respiratory disorders, the veteran was treated for chronic peptic ulcer disease, intervertebral disc syndrome, coronary artery disease and hypertension. In 1993, he underwent triple bypass surgery because of triple coronary vessel heart disease. In August 1993, he was without angina, had not been on a pacemaker, had never been in congestive heart failure, had normal sinus rhythm, and his hypertension was well controlled. VA records acquired include summaries of three hospitalizations. The first of these, from March 22, to May 12, 1993, was for bypass surgery. In June 1993, he underwent a left carotid endarterectomy. In July 1993, he was admitted for a right carotid endarterectomy after having had a left cerebral vascular accident (CVA) in June 1993. The CVA apparently affected his right body and right foot. A chest X-ray taken during that hospitalization showed persistent right middle lobe atelectasis. A VA examination was conducted in February 1994. The veteran's complaint at that time was increasing shortness of breath. He stated that even minimal exertion made him short of breath, and that because of that, he had not worked in the last five years. A spirometry report indicated moderate obstruction as well as low vital capacity, possibly from a concomitant restrictive defect. A chest X-ray showed mild chronic changes to the lungs, with no evidence of acute pneumonia. On examination of the lungs, only occasional rhonchi was auscultated. The lungs were otherwise clear. The extremities showed no clubbing, cyanosis, or edema. The diagnoses were; demonstrably active COPD, peripheral vascular disease, renal insufficiency, and hypertension. In February 1994, the RO confirmed the earlier decisions to deny a disability rating greater than 60 percent for bronchial asthma, emphysema, and COPD, with chronic bronchitis, and to deny a total rating based on individual unemployability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1994). The Board attempts to determine the extent to which the veteran's service connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.10 (1994). The veteran's lung disorder is rated as bronchial asthma under Diagnostic Code (DC) 6602. Moderate asthma; defined as rather frequent asthmatic attacks separated by only 10-14 day intervals with moderate dyspnea on exertion between attacks, is rated at 30 percent. Where asthma is severe; with frequent attacks (one or more weekly), marked dyspnea on exertion between attacks with only temporary relief by medication, and more than light manual labor is precluded, the rating is 60 percent. To warrant a 100 percent rating, asthma must be pronounced, with very frequent attacks, 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. Part 4, Code 6602. It is not required and "not expected...that all cases will show all the findings specified" by the rating schedule. 38 C.F.R. § 4.21. What is required is that where there is a question as to which of two evaluations is to 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. Here, the veteran's disability picture, as it relates to his respiratory disorders, clearly approximates the criteria for his present rating of 60 percent. Reports of clinical testing show moderate obstruction in, and mild chronic changes to the lungs. Marked dyspnea on exertion is shown, however, the latest VA examination and prior VA examination report, hospitalization reports and outpatient records did not find the other indications of severe impairment of health that must be present and attributable to respiratory disease to warrant the next higher rating of 100 percent. The credible evidence of record does not otherwise reveal evidence supportive of the veteran's claim for an increased evaluation for his lung disorder. Wood v. Derwinski, 1 Vet.App. 190 (1991). Thus, the Board is of the opinion that the current symptomatology, when viewed in the context of the entire evidentiary record, is reflective of no more than that level of impairment required for the veteran's current 60 percent evaluation. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.3, Code 6602 (1994). Moreover, an extraschedular evaluation is not appropriate because the veteran's disorder is not so unusual and exceptional as to render impractical the application of the regular rating standards, pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) (1994). The Board has taken under consideration the concept that the higher of two possible evaluations should be assigned whenever appropriate but, for the foregoing reason, it does not find that this guideline has application to the current appeal, as set out in 38 C.F.R. § 4.7 (1994). Individual Unemployability The veteran asserts that he is presently totally disabled as a result of his lung disorder. Total disability may be found to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. A total rating may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). The initial requirement of a total rating under this provision, is that where, as here, there is only one service-connected disability, it must be ratable at 60 percent or more. Id. The veteran meets that criterion. The requirements for a 60 percent rating for bronchial asthma include preclusion from more than light manual labor, which may therefore be presumed. For a total rating to be appropriate, however, it must be shown that the veteran's unemployability arose as a result of his service connected disability. Here, the veteran is afflicted with many disorders, all of which significantly contribute to his difficulty in seeking and maintaining gainful employment. The fact that he was born in 1926 may also have some bearing on his situation. The Board must note, however, that age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. The record reveals that the veteran reports a sixth grade education. He also reports approximately 27 years of employment with Marion Manufacturing Company, essentially as a weaver, and this is supported by employment records. A letter of September 1991, from Marion Fabrics, Inc., notes that the veteran last worked from May 1984 to June 1984, at which time he quit to accept other employment. There is also evidence of record, including the veteran's statement, that he has work experience as a security guard. The veteran's only service-connected disorder is his lung disorder, assigned a 60 percent rating. The Board finds that his service-connected disability is properly rated as indicated in Part I of this decision. In this case, the veteran's lung disability has consistently not been shown to result in that degree of impairment such that all forms of substantially gainful employment are precluded. Indeed, the two most recent VA examinations have revealed mild to moderate manifestations. While the findings show that the veteran experiences some degree of industrial impairment as a result of his service-connected lung disorder, it is insufficient to establish his unsuitability for further employment, especially in a less stressful, more sedentary, occupation. The Board would also note that the veteran has a number of nonservice-connected disorders, including a heart disorder, which weigh heavily upon his ability to work. Such disorders may not be considered in determining the veteran's claim. While the veteran may feel otherwise, the credible evidence does not support his claim. The Board, therefore, concludes that the preponderance of the evidence is against the conclusion that the veteran's service- connected disability, which is less than 100 percent disabling, precludes all forms of substantially gainful employment. 38 C.F.R. §§ .340, 3.341, 4.16 (1994). ORDER A disability rating in excess of 60 percent for bronchial asthma, emphysema, and COPD, with chronic bronchitis is denied. A total disability rating based on individual unemployability is denied. F. JUDGE FLOWERS 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.