BVA9503975 DOCKET NO. 93-11 587 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for emphysema with chronic obstructive pulmonary disease, currently evaluated 60 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had periods of active service from July 1943 to January 1947, from July 1947 to July 1950, and from July 1950 to July 1965. This case came before the Board of Veterans’ Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in January and July 1992 which denied the claim for increased rating; the latter determination also denied the veteran a total disability rating based on individual unemployability. To the extent that statements made by the veteran in his substantive appeal regarding the issue on appeal may constitute a notice of disagreement with the determination concerning a total disability rating (as contended by the veteran’s representative in January 1994), that issue has not been procedurally developed for appellate review. In addition, the Board would call to the attention of the RO statements made by the veteran in communication received from him in June 1992, wherein it would appear that he is claiming entitlement to service connection for syncopal episodes as secondary to his service-connected pulmonary disability and to a temporary total disability rating under the provisions of 38 C.F.R. §§ 4.29, 4.30. The latter issues have not been adjudicated. The RO’s attention is drawn to the above matters. CONTENTIONS OF APPELLANT ON APPEAL It is contended generally by and on behalf of the veteran that he has been hospitalized for treatment of his service-connected emphysema with chronic obstructive pulmonary disease and that the disability is more disabling than is reflected in the current evaluation. He states that he is unemployable due the disability. 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 an increased rating for the veteran’s pulmonary disability is not warranted at this time. FINDING OF FACT Emphysema with chronic obstructive pulmonary disease is manifested by dyspnea on exertion after walking one block, and by severe ventilatory impairment shown by X-rays and pulmonary function testing; there is not more than marked overall impairment of the veteran’s health. He does not have dyspnea at rest or marked dyspnea and cyanosis on mild exertion; the disability is not totally incapacitating. CONCLUSION OF LAW Emphysema with chronic obstructive pulmonary disease is not more than 60 percent disabling according to the schedular and extraschedular criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10 and Part 4, Code 6603 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded; that is, the claim is not implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the veteran in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). Factual background The service medical records reflect that the veteran was seen in March 1965 complaining of being short of breath. Chest X-ray reportedly showed bilateral diffuse pulmonary emphysema. Pulmonary function tests revealed findings consistent with a slight obstructive ventilatory defect. The examiner’s impression was that the veteran’s symptoms were due to emphysema, anxiety and altitude. He was advised to stop smoking. The veteran was separated from service in July 1965. Private and service department inpatient and outpatient records dated from 1970 to 1985 reflect no pulmonary complaints or pertinent positive clinical findings. However, the report of service department pulmonary function testing in February 1983 notes findings consistent with a mild obstructive component with severe small airway disease, which was improved only slightly with bronchodilators. A VA compensation examination was conducted in January and February 1986. The veteran reported that he had been a heavy smoker since age 10, but had reduced his smoking to approximately one pack per day. He complained of a productive cough in the mornings and evenings. On examination, normal chest mobility was noted, and breath sounds were normal. Chest X-rays again showed diffuse, bilateral pulmonary emphysema. Pulmonary function testing again revealed a slight obstructive ventilatory defect. A rating decision in February 1986 granted service connection for emphysema, with a slight obstructive ventilatory defect, and assigned a 10 percent rating. The veteran was hospitalized at a VA facility in May 1990 primarily for evaluation and treatment of a syncopal attack. The veteran indicated that he continued to smoke up to two packs of cigarettes per day. On examination, he was noted to be mildly dyspneic. Auscultation of his lungs disclosed no rales and only occasional rhonchi. The veteran was also evaluated for his pulmonary symptoms. The summary of that hospitalization notes that findings were "compatible with COPD [chronic obstructive pulmonary disease]." He was provided with inhalation therapy. VA outpatient records dated from May 1990 to May 1992 reflect visits for treatment and evaluation mainly of a syncopal episode. Those records note complaints of chronic shortness of breath and dyspnea on exertion, but few, if any, abnormal clinical findings were reported during the visits. A chest X-ray in March 1991 showed evidence of COPD. Pulmonary function tests revealed severe COPD. On auscultation, the veteran’s lungs were clear bilaterally. The veteran was hospitalized at a VA facility in February 1992, again primarily for evaluation and treatment of multiple syncopal episodes. The summary of that hospitalization notes no pertinent abnormal clinical findings and does not indicate any treatment, other than continued medication, directed toward his pulmonary disability. A VA compensation examination was conducted in November 1992. The veteran’s primary complaint was of shortness of breath. He reported that he still smoked three or four cigarettes a day. The examiner noted the veteran’s statement that he had marked shortness of breath and could walk only one block before becoming short of breath. On examination, there was increased antero- posterior chest diameter, decreased excursion of both hemidiaphragms, and dullness to percussion of the right posterior line. Bilateral crepital rales and wheezing was heard on auscultation of the chest. Chest X-rays were reportedly unchanged. Pulmonary function tests revealed a moderately severe obstructive ventilatory component, and a concurrent restrictive component could not be ruled out. Comparison with the prior study in October 1990 reflected no significant change. The examiner’s impression was of severe emphysema, which appeared to be worsening. Analysis In general, disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such evaluations involve consideration of the level of impairment of the veteran’s ability to engage in ordinary activities, to include employment. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Where there is a question as to which of two evaluations should 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 (1993). Although regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. §§ 4.1, 4.2, the present level of disability is of primary concern. Francisco v. Brown, No. 93-76, slip op. at 5 (U.S. Vet. App. Sept. 27, 1994). In evaluating the veteran’s claim, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Diagnostic Code 6603 provides that a 60 percent rating is warranted for emphysema where there is severe impairment, manifested by exertional dyspnea sufficient to prevent climbing one flight of steps or walking one block without stopping, severe ventilatory impairment confirmed by pulmonary function tests, with marked overall impairment of health. A 100 percent schedular rating requires that the impairment be pronounced, manifested by intractable and totally incapacitation, dyspnea at rest, or marked dyspnea and cyanosis on mild exertion, with the severity of the emphysema confirmed by chest X-rays and pulmonary function tests. While it does appear that the veteran’s symptoms due to his service-connected pulmonary disability have worsened over the last ten years, it is clear that none of the criteria for a total schedular evaluation for that disorder are met at this time. By his own account, the veteran can walk one block before becoming short of breath; he does not have dyspnea at rest. Chest X-rays and pulmonary functions tests, although showing changes consistent with severe emphysema and COPD, have remained unchanged since 1990. The records do not document more than marked overall impairment of the veteran’s health due to the service-connected disability. An increased rating on a schedular basis, then, is not warranted. It should be noted that the evaluation for the disability was increased from 10 percent to 60 percent disabling in 1991. This increased rating reflected an increase in the severity of the disability noted since service connection was granted in 1986. However, the record does not demonstrate a significant worsening of the disability over the last several years. The Board also notes the veteran’s comments regarding his being unemployable due to the service-connected disorders, including his pulmonary disability. Although such comments are appropriate to a claim for total disability rating based on individual unemployability (not here at issue), marked interference with employment is also a criterion for an extraschedular rating. In exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran’s average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the veteran’s disability level. There is no evidence of any unusual or exceptional circumstances regarding this disability. The record does not reflect any evidence of marked interference with employment, as contended by the veteran. Neither does it show frequent periods of hospitalization related to his pulmonary disorder, that would take the veteran’s case outside the norm so as to warrant an extraschedular rating. While the veteran has stated that he has recently been hospitalized on multiple occasions for treatment of his emphysema and COPD, the records do not confirm this. In fact, the records reflect two hospitalizations since May 1990, both primarily for evaluation and treatment of syncopal episodes, a non-service- connected disorder. Although treatment was rendered for the veteran’s emphysema during the hospitalizations, that treatment consisted mainly of continued medication. It is clear that the veteran’s physicians merely provided appropriate treatment for what is admittedly a severely disabling condition. The records do not indicate that the severity of the pulmonary disability, by itself, however, would have required hospitalization. Accordingly, the Board finds that the criteria for an extraschedular rating also are not met. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, the Board finds that the preponderance of the evidence is against the veteran’s claim. Accordingly, an increased evaluation for emphysema with chronic obstructive pulmonary disease is not warranted at this time on any basis. ORDER An increased rating for emphysema with chronic obstructive pulmonary disease, currently evaluated 60 percent disabling, is denied. N. R. ROBIN 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.