Citation Nr: 0002622 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 96-39 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a compensable rating for the residuals of a right pneumothorax. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from January 1971 to October 1973. This case comes to the Board of Veterans' Appeals (Board) on appeal of a October 1995 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). In an informal hearing presentation, the veteran's representative has raised the issue of service connection for an abnormality of the cervical spine, at C-2. That issue has not been developed for appellate review and is referred to the RO for initial consideration. See Kellar v. Brown, 6 Vet. App. 157 (1994). FINDING OF FACT The residuals of a pneumothorax of the right lung are currently asymptomatic, without relation to symptomatology of the veteran's currently demonstrated chronic obstructive pulmonary disorder. CONCLUSION OF LAW The criteria for a compensable rating for the residuals of a right pneumothorax have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.97, Diagnostic Code 6814 (1995); 38 C.F.R. § 4.97, Code 6843 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION It is initially noted that this claim on appeal is well grounded; that is, it is not inherently implausible. It is also found that the facts relevant to this issue have been properly developed and the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. Service connection for the residuals of a pneumothorax was granted by the RO in a July 1990 rating decision, and a noncompensable evaluation was assigned. During the course of the present appeal, the regulations utilized to evaluate this disorder were revised on October 7, 1996. Compare 38 C.F.R. § 4.97, Diagnostic Code 6814 (1995), with 38 C.F.R. § 4.97, Code 6843 (1999). Where the law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Accordingly, the veteran's service-connected disorder will be evaluated under both the former and revised regulations. An examination was conducted by VA in February 1995. At that time, it was noted that the veteran complained of shortness of breath at times, even at rest. The dyspnea was aggravated by exertion. He stated that he had intermittent pain and sharp pain in the right upper back that was unrelated to position or activity. He had a daily cough that was sometimes productive. He had no history of asthma, but smoked a half-pack of cigarettes per day. The veteran could not tell how far he could walk before getting short of breath because his ability to walk was restricted by back pain. Objectively, diminished breath sounds were reported, that were equal, bilaterally. He had slight expiratory wheezing with forced expiration. The veteran had a dry cough that was noted several times during the examination. There was no evidence of cor pulmonale and no asthma. Cyanosis and clubbing were not found. There was no evidence of dyspnea at rest. A chest x-ray study was normal. The diagnosis was status post pneumothorax to the right lung, with clinical evidence of chronic obstructive pulmonary disease, as evidenced by the bilateral diminished breath sounds and slight expiratory wheezing. At a VA examination conducted in May 1995, the veteran complained of increased shortness of breath and of mid sternal and right-sided chest pain. The pain was worse with deep inspiration. Objectively, he had a low raspy voice. The veteran noted that this was the third day that this had occurred and that he thought he had a cold. He stated that he had increased shortness of breath over this time. Lungs were clear to auscultation, with no evidence of cor pulmonale. The veteran denied asthmatic attacks, and there was no cyanosis or clubbing. He did have a productive cough. The diagnoses were status post right pneumothorax; increased shortness of breath; low, raspy voice; and productive cough. The results of a Gallium 67 study, performed to rule out pulmonary fibrosis in April 1995, were normal. Pulmonary function studies performed in May 1995 were interpreted as showing a mild restrictive disorder. A VA examination was conducted in October 1998, for the purpose of determining whether the veteran's current respiratory complaints were related to the service-connected residuals of a pneumothorax. The examiner reviewed all of the veteran's medical records, performed a physical examination, and reviewed pulmonary function studies that were performed in connection with the current examination. The examiner concluded that the veteran had chronic obstructive pulmonary disorder that was most likely secondary to cigarette smoking. It was considered unlikely that the veteran's current chronic obstructive pulmonary disorder was related to the service-connected right pneumothorax and that the right pneumothorax did not make any significant contribution to the veteran's current respiratory problems. In an addendum written after additional chest x-ray and pulmonary function studies were performed, the examiner stated that it was highly unlikely that the veteran's current symptomatology was in any way related to the pneumothorax that occurred during service. The veteran's service-connected residuals of spontaneous pneumothorax are currently assigned a noncompensable rating. Under both the old rating criteria (Diagnostic Code 6814) and the new rating criteria (Diagnostic Code 6843), spontaneous pneumothorax is evaluated as 100 percent disabling for six months, and residuals are thereafter rated as analogous to bronchial asthma under Diagnostic Code 6602. As there is no evidence that the veteran has experienced spontaneous pneumothorax since the time of service, the appropriate matter for consideration is evaluation of any residuals thereof which are currently manifested, by analogy to Diagnostic Code 6602. Under the previous regulations, an evaluation of 10 percent disabling was warranted for bronchial asthma of mild severity, manifested by paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks. 38 C.F.R. § 4.97, Diagnostic Code 6602 (1995). In the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. Id. The revised regulations contemplate the assignment of a 10 percent rating when the Forced Expiratory Volume in one second (FEV-1) is 71 to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; there is intermittent inhalation or oral bronchodilator therapy. 38 C.F.R. § 4.97, Diagnostic Code 6602 (1999). In the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. Id. In the instant case, the veteran's current respiratory symptomatology has been associated to his nonservice- connected chronic obstructive pulmonary disorder. The veteran has no history of asthma and any shortness of breath that is a result of the pneumothorax for which service connection is currently in effect. Under these circumstances, a compensable rating is not warranted and the claim must be denied. ORDER A compensable evaluation for the residuals of a right pneumothorax is denied. JOY A. MCDONALD Acting Member, Board of Veterans' Appeals