Citation Nr: 0001362 Decision Date: 01/14/00 Archive Date: 03/02/00 DOCKET NO. 98-07 781 DATE JAN 14, 2000 On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES Entitlement to an increased rating for empyema, incurred as secondary to a shell fragment wound to the chest, with fibrotic changes, currently evaluated as 10 percent disabling. Entitlement to a separate rating for a thoracotomy scar, right axilla. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran had active service from February 1943 to December 1945. This matter came before the Board of Veterans' Appeals (Board), on appeal from a rating decision by the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO). In July 1999 the case was remanded for further evidentiary development. The remand also referred the issues of an earlier effective date for the grant of service connection for the veteran's lung condition and of an increased rating for his finger disability to the RO. Those issues are still not in appellate status. 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 service-connected lung disorder was manifested by a lack of wheezing, rates or rhonchi prior to October 7, 1996. 3. The service-connected lung disorder has had no affect on the veteran's pulmonary function tests subsequent to October 7, 1996. 4. A right axilla thoracotomy scar is freely movable except at its center, and not tender or painful. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for a lung disorder, incurred as secondary to a shell fragment wound to the chest have not been met - 2 - either prior to October 7, 1996 or thereafter. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. 3.102, 4.1-4.7, 4.21, 4.96, Diagnostic Code 6811 (1996, 1999). 2. The criteria for a separate rating of 10 percent for a thoracotomy scar, right axilla, have been met. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. 4.56, 4.73 Diagnostic Code 5321 (1996, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet.App. 218, 224 (1995). Factual Background Service medical records reflect that in July 1944, the veteran sustained a penetrating gun shot wound of the right posterior chest, causing a partial collapse of the right lung, resulting in empyema of the right pleural space, requiring a right thoracotomy (open drainage) with a drainage tube in the right axilla. Additional service medical records reflect that he was placed on limited duty because of residual chest pain and dyspnea secondary to chest pain and empyema. In a rating action in July 1946, the RO granted the veteran service connection for a gun shot wound of the right shoulder, involving Muscle Group I. A 10 percent rating was assigned. A VA medical examination was performed in February 1949. A post operative scar was noted on the right side of the chest in the axilla region between the 6th and 7th ribs. It scar was 5 inches long, healed, not adherent, but depressed. - 3 - In a rating action in February 1949, the RO recharacterized the wound as residuals, gun shot wound of the chest with pleurisy, Muscle Group XXI. A 10 percent rating was confirmed and continued. A VA medical examination was preformed in April 1961. The lungs were clear to auscultation and percussion, except for slightly decreased breath sounds at the right axillary base. There was no coughing, and no dyspnea was noted. Vital capacity was 3.6 liters at 83 percent of estimated normal. A chest X-ray revealed pleural thickening at the right base but was otherwise normal. Findings regarding the right chest thoracotomy scar were similar to those noted in 1949. During a private myocardial perfusion stress test in February 1994, the lungs showed full expansion. There was no dullness in percussion and the lungs were clear on auscultation. The veteran sought an increased rating in January 1996. A February 1996 VA pulmonary examination report states that the veteran had no rates, rhonchi or wheezing. The X-ray revealed some fibrotic changes in the right lower lung field. The costophrenic angle was blunted due to adhesion. The impression was slight chronic obstructive pulmonary disease without acute abnormality. The 10 percent evaluation was continued by rating decision dated in March 1996. The veteran appealed and the Board remanded the case in July 1999 for an examination and consideration under the schedular criteria that became effective on October 7, 1996. A July 1999 VA X-ray report notes some pleural thickening and adhesion on the right side. The veteran's lungs were clear but slightly "hyperinflated". The radiologist's impression was slight chronic obstructive pulmonary disease without change since 1996. 4 - The July 1999 VA pulmonary examination report states that the veteran complained of shortness of breath since 1945. He stated that he could only run 50 yards, but could walk indefinitely and played golf for recreation. On examination his lungs were clear except for some wheezes. An arterial blood gas was 94.4 percent. The examiner's diagnosis stated that the veteran had moderately severe chronic obstructive pulmonary disease from smoking and that the service-connected empyema would probably cause no impairment by itself. The residuals could possibly have a very marginal negative impact on the disability due to his chronic obstructive pulmonary disease. Pulmonary function tests were ordered. The July 1999 VA pulmonary function tests report states that the veteran's forced expiratory volume (FEV I) was 47.3 percent of predicted; his FEV I /FVC was 62 percent and his DLCO (SB) was 47.3 percent of predicted. The interpretation was moderate-severe airflow reduction improved since 1996. Reversibility may be present and can be tested with a bronchodilator. An August 1999 opinion from the examiner stated that all of the impairment shown on the pulmonary function tests was due to non- service connected problems (chronic obstructive pulmonary disease/asthma) and almost none, if any, was due to the history of empyema. The examiner also stated that the veteran's empyema did not exacerbate his chronic obstructive pulmonary disease. A July 1999 VA scars examination found a scar on the right chest under the axillary areas, approximately 18 cm. to 20 cm. in length. At the center of the scar was a very slight adhesion of scar tissue, probably less than two millimeters. The scar was pretty much freely moveable except for one small area that was only slightly restricted. No tenderness or adhesions were noted on gross movement. Range of motion testing of the right shoulder caused the scar to move very little. The examiner noted that the range of motion of the right shoulder was slightly restricted and referred to the orthopedic examination. The diagnosis was shrapnel fragment wound scar on the lateral aspect of the right chest. - 5 - Analysis Disability evaluations are determined by the application of a schedule of rating that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. 1155 (West 1991), 38 C.F.R. Part 4 (1997). When a question arises as to which of two evaluations shall be assigned, 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 (1997). During the pendency of the veteran's appeal, the VA promulgated new regulations amending the rating criteria for respiratory disabilities, effective October 7, 1996. "[W]here the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to [the veteran] ... will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so." Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The Board notes that the RO applied the old standards in March 1996 and, after the Board's remand, applied the current standards in the August 1999 statement of the case in determining that a 10 percent rating was warranted. Accordingly, the Board may similarly consider each version of the regulations without determining whether the veteran will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In Rhodan v. West, 12 Vet. App. 55 (1998), the United States Court of Appeals for Veterans Claims (Court) noted that, where compensation is awarded or increased "pursuant to any Act or administrative issue, the effective date of such an award or increase ... shall not be earlier than the effective date of the Act or administrative issue." See 38 U.S.C.A. 5110(g)(West 1991). As such, the Court found that this rule prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. Therefore, the Board can not apply the revised rating provisions to the period prior to October 7, 1996. 6 - Prior to October 7, 1996 pleurisy, purulent (empyema) following intrapleural or extrapleural pneumolysis was rated as I 00 percent disabling. Very severe empyema consisting of the symptoms outlined under "severe" plus persistent underweight, with marked weakness and fatigability on slight exertion was rated as 80 percent disabling. Severe empyema with extensive pleural or pleuropericardial adhesions, marked restriction of respiratory excursions and chest deformity, intractable to treatment warranted a 60 percent rating. Moderately severe empyema with residual marked dyspnea or cardiac embarrassment on moderate exertion warranted a 30 percent evaluation. Moderate empyema with some embarrassment of respiratory function warranted a 10 percent function. 38 C.F.R. 4.97, Diagnostic Code 6811. Effective October 7, 1996 empyema is rated under the general rating formula for restrictive lung disease (diagnostic codes 6840 through 6845), which provides that: FEV- I less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-I/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 predicted, 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......100 FEV- I of 40- to 55-percent predicted, or; FEV- I /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)............................ .60 FEV- I of 56- to 70-percent predicted, or; FEV- I /FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted....30 - 7 - FEV- I of 7 1 - to 80-percent predicted, or; FEV- I /FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted Or rate primary disorder.......................................10 The VA pulmonary function test results indicate that the veteran suffers from a high level of respiratory impairment; however, the VA pulmonologist opined that nonservice-connected asthma and chronic obstructive pulmonary disease were the causes of the poor pulmonary function tests. Further, the examiner responded in the negative that the service-connected empyema aggravated the nonservice-connected respiratory disorders. In applying the criteria in effect prior to October 1996, the record is negative for medical evidence of moderately severe empyema with marked dyspnea or cardiac embarrassment on moderate exertion so as to warrant a higher evaluation. Likewise, since the examiner opined that respiratory impairment of a nonservice- connected nature was the source of the poor results of the pulmonary function test, a higher rating is not merited under the newer criteria. Neither version of the regulation is more favorable to the veteran. Therefore, an increased rating is not warranted under either the old or the new criteria. In summary, the Board finds that the preponderance of the evidence is against a disability rating greater than 10 percent for the veteran's lung disorder, incurred as secondary to a shell fragment wound to the chest. The Board notes that the veteran appealed the initial March 1996 evaluation of 10 percent for empyema. The medical evidence of record does not indicate that the veteran's lung disability was more severe at any time during the pendency of his current appeal. The medical evidence does not show that his lung disability was more severely disabling than the level of impairment reflected in the most recent - 8 - VA compensation examination. Therefore, the evidence does not indicate that a staged rating is warranted in this claim. Fenderson v. West, 12 Vet App 119 (1999). In the supplemental statement of the case dated August 25, 1999, the RO stated, "the evaluation of the shell fragment wound, right chest is continued. It appears that the thoracotomy scar has been incorrectly combined with the 10 percent protected rating assigned for either service-connected empyema or the shell fragment wound of the right posterior chest (trapezium muscle). See Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (veteran is entitled to separate disability ratings for different manifestations of the same disability when the symptomatology of one manifestation is not duplicative or overlapping of the symptomatology of the other manifestations). Under diagnostic codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. Cardinal signs of disability include: loss of power, weakness, lowered threshold of fatigue, fatigue- pain, impairment of coordination and uncertainty of movement. (1) Slight disability of muscles--(i) Type of injury: simple wound of muscle without debridement or infection. (ii) History and complaint: service department record of superficial wound with brief treatment and return to duty. Healing with good functional results. No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section. (iii) Objective findings: minimal scar. No evidence of fascia] defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue. (2) Moderate disability of muscles--(i) Type of injury: through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. (ii) History and complaint: service department record or other evidence of in-service treatment for the wound. Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. (iii) Objective findings: entrance and (if present) exit scars, small or linear , indicating short track of missile through - 9 - muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. (3) Moderately severe disability of muscles--(i) Type of injury: through and through or deep penetrating wound by small high velocity missile or large low- velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. (ii) History and complaint: service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings: entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. 38 C.F.R. 4.56 (1999) Thoracic muscle group, muscles of respiration, Group XXI. Severe or moderately severe impairment of muscle group XXI warrants a 20 percent rating. Where impairment of the muscle group is moderate, a 10 percent rating is for assignment. Slight impairment merits a 0 percent rating. 38 C.F.R. 4.73, Diagnostic Code 5321 (1999). It is apparent that the thoracotomy wound scar is more than slight in degree, as there is scarring and fascial defect; however, it cannot be said that the impairment impacts more than one muscle group or that tests of strength and endurance when compared with the left side demonstrate positive signs of impairment so as to warrant a 20 percent rating for moderately severe impairment. In the final analysis, the disability presented by the thoracotomy scar most closely approximate the criteria for moderate impairment. A separate 10 percent rating is merited. In conclusion, the veteran's disabilities should be rated: 20 percent for residuals of a gun shot wound to the right buttock, muscle group XVII; a 10 percent rating for residuals of a gun shot wound of the right trapezium muscle, muscle group 1; a 10 - 10- percent rating for empyema secondary to gun shot wound of the right chest with fibrotic changes; and, a 10 percent rating for a thoracotomy scar, right axilla. ORDER Entitlement to an increased evaluation for a lung disorder, incurred as secondary to a shell fragment wound to the chest is denied. Entitlement to a separate 10 percent rating for thoracotomy scar, right axilla is granted. RENEE M. PELLETIER Member, Board of Veterans' Appeals - 11 -