BVA9507518 DOCKET NO. 93-13 918 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased rating for interstitial lung disease, currently rated 10 percent disabling. ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from June 1965 to September 1967, and from November 1972 to September 1990. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a November 1992 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs Regional Office (VARO). We note that additional evidence, including inpatient treatment reports, was submitted to VARO beyond the 90-day period following certification of the appeal as described in 38 C.F.R. §20.1304(a) (1994). Following the expiration of the 90-day period, the Board may not accept additional evidence except when the appellant demonstrates on motion that there was good cause for the delay. 38 C.F.R. §20.1304(b) (1994) (emphasis added). The Board finds that such a motion has not been filed, and as such, the additional evidence submitted may not be accepted in connection with the current appeal and is referred to VARO for appropriate action in accordance with 38 C.F.R. §20.1304(a), (b) (1994). The Board further notes that a notice of disagreement has not been filed with respect to VARO's December 1992 rating decision which denied the appellant's claim to a total disability rating based on individual unemployability. As such, the Board may not adjudicate the claim for individual unemployability at this time. CONTENTION OF APPELLANT ON APPEAL The appellant contends that his service-connected lung condition has sufficiently increased in severity to warrant a disability evaluation in excess of the currently assigned 10 percent. 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 a rating in excess of 10 percent for the appellant's service-connected interstitial lung disease is not warranted. FINDING OF FACT The appellant's service-connected lung condition is currently manifested by clinical findings of a slight increase in the interstitial markings of the lungs, possibly due to fibrosis, and a moderate restrictive ventilatory impairment. CONCLUSION OF LAW The schedular criteria for a disability evaluation in excess of 10 percent for the appellant's service-connected interstitial lung disease are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.97, Diagnostic Code 6699-6600 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. Background The appellant was service connected for interstitial lung disease along with other conditions by rating action dated April 1991. In view of service medical records dated from November 1972 to September 1990 and a report of VA examination dated November 1990, the appellant's service-connected lung condition was assigned a 10 percent disability rating. Service medical records reflect that interstitial lung disease was found on an x-study dated October 1989. On VA examination in September 1990, clinical findings indicated dry crackles at the base of both lungs and good excursion; the impression was interstitial lung disease, etiology unknown with minimal abnormalities on pulmonary function test by history. In March 1992, the appellant requested a disability evaluation in excess of the currently assigned 10 percent for his service- connected interstitial lung disease. VA outpatient treatment reports dated March and April 1992 reflect mostly treatment for his service-connected heart condition. The appellant's history of interstitial lung disease was noted and, on examination, the lungs were found to be clear and without rales. Also, the appellant's respiration was shown to be regular and unlabored. In July 1992, a VA examination was conducted. By history, the appellant had neopathic hypertrophic subaortic stenosis, hypertension, and interstitial lung disease. He complained of intermittent chest pain, along with shortness of breath, weakness, and some profuse perspiration associated with the chest pain. On examination of the lungs, there were no rales, rhonchi, or wheezes. Clinical findings were also negative for hepatomegaly and edema. An x-ray study revealed a slight increase in the interstitial markings possibly due to fibrosis. The appellant was diagnosed with interstitial lung disease. A subsequent pulmonary function test indicated the presence of a moderately restrictive ventilatory impairment. In a statement dated December 1992, the appellant indicated his disagreement with VARO's rating action dated November 1992 which denied him a rating in excess of 10 percent for his service- connected lung condition. The appellant argued that his lung condition had worsened in the past two years and that his service-connected lung disease contributed to the severity of his service-connected heart condition. He further argued that his VA examination in July 1992 was incomplete. In addition he reported having severe shortness of breath along with chest pain. In a subsequent undated statement, the appellant reiterated that the VA examination in July 1992 was incomplete. He reported having had extreme shortness of breath, chest pains, occasional bloody sputum, and chest colds. Analysis The appellant is seeking a rating in excess of 10 percent for his service-connected interstitial lung disease. 38 U.S.C.A. § 1155 (West 1991). In evaluating the appellant's request for an increased rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1994). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Where there is a question as to which of two evaluations shall 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 (1994). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1994). The Board has carefully reviewed the pertinent medical evidence, including the appellant's entire medical history in accordance with 38 C.F.R. § 4.1 (1994) and Peyton v. Derwinski, 1 Vet.App. 282 (1991), and concluded that the appellant is appropriately rated for his service-connected interstitial lung disease at the 10 percent disability rating level. The appellant is currently rated under diagnostic code 6600 which provides a 10 percent rating for moderate impairment of the respiratory system as shown by objective evidence of considerable night or morning cough, slight dyspnea on exercise, and scattered bilateral rales in the chest; a 30 percent rating is provided for moderately severe impairment as shown by objective evidence of persistent cough at intervals throughout the day, considerable expectoration, considerable dyspnea on exercise, rales throughout chest, and beginning chronic airway obstruction. 38 C.F.R. § 4.97, Diagnostic Code 6600 (1994). While the appellant's complaints of an increased productive cough and extreme shortness of breath associated with chest pain have been considered, the Board assigns greater probative value to the objective medical evidence in the report of VA examination and pulmonary function test dated July 1992. Clinical findings at that examination were negative for rales, rhonchi, or wheezes, and there was no evidence of sputum, edema, and cyanosis or clubbing of the fingers. Apart from slightly increased interstitial markings which were noted to possibly represent fibrosis, there were no significant abnormalities of either the lungs or respiratory system. On pulmonary function testing, a moderately obstructive ventilatory defect was shown. The appellant was diagnosed with interstitial lung disease. Moderately severe to pronounced impairment of the respiratory system is not shown by the objective medical evidence as required for a disability evaluation in excess of 10 percent under diagnostic code 6600. The appellant asserts that the VA examination conducted in July 1992 was incomplete. However, clinical findings suggest that the examination was conducted in accordance with the Physician's Guide for Disability Evaluation Examinations. This examination was partly respiratory in nature and included a medical history, physical examination, an x-ray study, and a pulmonary function test. Based on a review of the clinical tests performed, the Board finds that the examination was adequate and complete for purposes of evaluating pathological changes in the appellant's lung condition. We note that the appellant's primary medical complaint was for increased shortness of breath associated with chest pains. A review of the evidence of record shows that the appellant is rated at the 60 percent disability level for his service- connected heart condition. We believe that, in light of the clinical evidence relating the appellant's dyspnea with his heart condition and the reasons and bases enunciated in the rating decision which assigned a 60 percent rating to the heart condition, the level of disability associated with appellant's complaints for dyspnea has been taken fully in to account under the currently assigned 60 percent disability evaluation for heart disease. As such, the Board finds that a rating in excess of 10 percent for his lung disability on the basis of his increased shortness of breath alone would violate the principles of 38 C.F.R. § 4.14 (1994) which provides that an evaluation of the manifestation under different diagnoses is to be avoided. Application of the extraschedular criteria is not warranted in this case. 38 C.F.R. § 3.321(b) (1994). There is no evidence that the service-connected interstitial lung disease presents such an exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. In view of the above, the Board concludes that the appellant is appropriately rated at the 10 percent disability level for moderate ventilatory impairment associated with interstitial lung disease. ORDER An increased rating for interstitial lung disease is denied. C.P. RUSSELL 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.