Citation Nr: 0000680 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 98-09 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an increased evaluation for chronic obstructive pulmonary disease (COPD) as a residual of shell fragment wounds (SFW), currently rated as 10 percent disabling. 2. Entitlement to an increased evaluation for chronic lumbosacral strain as a residual of SFW, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD J.R. Bryant, Associate Counsel INTRODUCTION The veteran served on active military duty from November 1965 to February 1970. This matter is before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from an October 1997 rating determination by the Albuquerque, New Mexico, Regional Office (RO). As originally developed for appeal, the veteran's claims included the additional issue of a compensable evaluation for non-ossifying fibroma as a residual of SFW, scar, left lower leg. However, the veteran indicated at his June 1999 travel board hearing that he did not wish to pursue an increased evaluation for this disability and the issue was withdrawn. FINDINGS OF FACT 1. The veteran's COPD is currently manifested by pulmonary function test results of FEV-1 at 78 percent predicted and FEV-1/FVC at 93 percent. 2. The veteran's service-connected lumbosacral strain is manifested by pain, moderate limitation of motion and mild paravertebral muscle spasms. There is no demonstrable evidence of arthritis on X-ray examination. 3. The veteran's scars are well healed and essentially asymptomatic. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation for chronic COPD as a residual of SFW have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.97, 4.118 Codes 6604 and 7805 (1999). 2. The criteria for an increased evaluation for chronic lumbosacral strain as a residual of SFW have not been satisfied. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.71a, 4.118 Codes 5295 and 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records show the veteran sustained shell fragment wounds to the left anterior chest wall and the lumbosacral region. In October 1970, service connection was established for scars of the lumbosacral region. In September 1989, service connection was established for scars of the anterior chest wall. Noncompensable evaluations were assigned to each disability. The veteran filed his current claim for increase in January 1997. VA and private treatment records from November 1995 to January 1997 primarily show treatment for an unrelated heart disorder. On VA examination in August 1997, the veteran reported that in 1993 he began having episodes of shortness of breath, wheezing and productive cough diagnosed as COPD. He has been on multiple inhalers since that time, but continues to have symptoms on a daily basis. He complained of shortness of breath mostly on minimal exertion but not at rest. He gave a history of heavy smoking for 30 years and currently smokes one pack of cigarettes per day. The veteran also complained of daily lumbosacral spine pain which increases with prolonged walking and sitting or with stooping or bending forward. Examination of the lungs revealed scattered rhonchi and wheezes throughout all lung fields. The point of maximal impulse was in the fifth intercostal space in the midclavicular line. There were no murmurs or gallops. The veteran's pulse was 72 per minute and respiration was 20 per minute. Pulmonary function tests (PFT) showed a moderately severe decrease in vital capacity and mild airflow obstruction. There was significant improvement in flow rates with bronchodilation. Examination of the active and passive range of motion of the lumbar spine revealed forward flexion limited to 85 degrees, backward extension to 10 degrees, right lateral flexion to 20 degrees and left lateral flexion to 15 degrees. Right rotation was limited to 20 degrees and rotation to the left was limited to 25 degrees. Pain was visibly manifested in the lumbar spine at 90 degrees of flexion, and ending at 85 degrees and beginning at 15 degrees of extension and ending at 10 degrees. The examiner noted that on acute flare-ups of pain, there was probably 25 percent less range of motion in the lumbar spine, but that it was impossible to give exact degrees. Further examination revealed mild paravertebral muscle spasms. There were no postural abnormalities, fixed deformities or neurological abnormalities and X-rays of the lumbar spine were negative. The scars were described as well healed and unremarkable. A subsequent PFT in March 1998 showed FEV-1 (forced expiratory volume in one second) of 78 percent predicted and FVC (forced vital capacity) of 73 percent. The ratio of FEV- 1 to FVC (FEV-1/FVC) was 93 percent. The diagnosis was chronic moderately severe COPD, probably mostly bronchitis and not excluding emphysema. There was improvement following bronchodilator use. In an addendum dated in December 1998, the examiner concluded that injury to the lower back could cause chronic lumbosacral strain or traumatic degenerative arthritis. The examiner also concluded that COPD could be caused from smoking as well as from chest trauma. In February 1999, the RO expanded the grants of service connection to include chronic COPD and lumbosacral strain as residuals of SFW and increased the ratings to 10 percent and 20 percent, respectively. In June 1999, the veteran, accompanied by his representative, presented testimony at a hearing before a Traveling Member of the Board. He testified climbing steps, walking more than a block, and the heat of the day causes shortness of breath. He also testified that his VA physician indicated that his symptoms could possibly be attributed to a nonservice connected heart problem. With respect to the lumbar spine the veteran testified that he has significant limitation of motion due to pain and that prolonged sitting causes discomfort. He also testified that pain radiates from the buttocks into the left leg and that he uses a cane due to left leg weakness. The veteran testified that Flexeril helps but that he does not like to take it because of the side effects. Analysis The Board finds that the veteran's claims for increased ratings for COPD and lumbosacral strain, as SFW residuals, are well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that he has presented claims that are plausible. The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); Murphy v. Derwinski, 1 Vet.App. 78 (1991); Proscelle v. Derwinski , 2 Vet.App. 269 (1992). Where, as in this case, an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). I. COPD Under Code 6604, a 10 percent rating is warranted for chronic COPD when there is a FEV-1 of 71 to 80 percent predicted, or FEV-1/FVC of 71 to 80 percent, or DLCO (SB) 66 to 80 percent predicted. A 30 percent rating is warranted when there is a FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or DLCO (SB) of 56 to 65 percent predicted. A 60 percent rating is warranted when there is a FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or DLCO (SB) of 40 to 55 percent predicted, or a maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is warranted for COPD manifested by FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; 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. 38 C.F.R. § 4.97, Code 6604 (1999). The rating criteria are for the most part based on pulmonary function testing results. The most recent VA pulmonary function testing in March 1998 shows the FEV-1 was recorded as 78 percent and the FVC was 73 percent. The ratio of FEV-1 to FVC is 93 percent. Therefore, a 30 percent disability evaluation is not warranted as there is no evidence that the veteran had an FEV-1 of 56 to 70 percent of the predicted value or FEV-1/FVC of the same. In this case, the pulmonary function tests indicate that the veteran is properly rated as 10 percent disabling. II. Lumbosacral strain The veteran's lumbar spine is rated under Code 5295 for lumbosacral strain. A 20 percent rating requires lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. For 40 percent under this code, lumbosacral strain must be severe with listing of whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a Code 5295 (1999). After a thorough review of the record, the Board concludes that the veteran's low back disorder is appropriately rated as no more than 20 percent disabling. There is no objective evidence of listing of whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion, and muscle spasm on extreme forward bending. In view of these findings and the lack of evidence to establish symptomatology such as to meet the criteria for an increased disability evaluation, the veteran's low back disorder is most appropriately rated as 20 percent disabling. The Board has also considered the applicability of other diagnostic codes for appropriately rating the service- connected lumbar spine disability and notes that based solely on objective measurements of limitation of motion, the veteran would warrant only a 20 percent evaluation. The March 1998 VA examination showed forward flexion and extension of the lumbar spine were to 85 degrees and 10 degrees, respectively. Lateral flexion was to 15 degrees on the left and 20 degrees on the right. These findings reflect moderate, but not more than moderate, limitation of lumbar motion. 38 C.F.R. § 4.71a, Code 5292 (1999). There is also no evidence of significant neurological involvement. Although the veteran testified regarding radiation of pain into the lower left extremity it does not substantiate that his lumbar spine disability is reflective of severe intervertebral disc syndrome, the criteria for the next higher evaluation of 40 percent under Code 5293. 38 C.F.R. § 4.71a, (1999). Therefore, the Board concludes that the manifestations of the veteran's service connected lumbosacral strain do not support an increased evaluation, greater than the currently assigned 20 percent disability evaluation under Diagnostic Codes 5292, 5293 or 5295. Finally, in reaching its determination consideration has been given to the impact of the veteran's functional loss due to pain when rating service-connected disabilities, as required by DeLuca v. Brown, 8 Vet. App. 202 (1995). However, here the current 20 percent rating adequately compensates the veteran for his limitation of motion and functional loss. The Board notes that further restrictions due to pain noted on VA examination in March 1998, i.e., painless flexion to 85 degrees and painless extension to 10 degrees, still reflect no more than moderate limitation of motion. Even with consideration of factors such as pain and exacerbation on use, severe limitation of motion, severe lumbosacral strain, or severe disc disease is not shown. Although the Board is required to consider the effect of the veteran's pain when making a rating determination, and has done so in this case, the rating schedule does not require a separate rating for pain. Spurgeon v. Brown, 10 Vet.App. 194 (1997). Lastly, the veteran's service-connected scars are currently rated under 38 C.F.R. § 4.118, Code 7805 based on limitation of function of the part affected. The affected areas include the left anterior chest wall and the lumbosacral spine region. There is no evidence indicating that the scars are anything other than well healed and asymptomatic and the veteran has not reported any symptomatology related to his scars. Also, there is no indication that the scars themselves limit any function of the body parts affected. Accordingly, separate ratings are not warranted based on evaluation of the veteran's SFW scars. In making its determination, the Board has considered the veteran's contentions, which are considered credible insofar as the veteran described his current symptoms and beliefs that his service-connected disabilities are more disabling than currently rated. However, the veteran is not competent to testify as to matters requiring medical expertise. See e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The competent evidence in this case does not provide a basis for favorable action on the veteran's claims. The Board therefore finds that a preponderance of the evidence is against the claims for increased ratings and that the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 1991 & Supp. 1999). ORDER Entitlement to an increased evaluation for COPD as a residual of SFW is denied. Entitlement to an increased evaluation for lumbosacral strain as a residual of SFW is denied. D. C. Spickler Member, Board of Veterans' Appeals