BVA9503168 DOCKET NO. 93-02 490 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an increased evaluation for the residuals of an excision of a benign tumor from the left lung, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from May 1945 to March 1947. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 1990, rating decision of the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for history of excision of a benign tumor from the left lung and assigned a 10 percent rating. The notice of disagreement as to the evaluation assigned was received in April 1991. The statement of the case was sent to the veteran in April 1991. The substantive appeal was received in June 1991. In a September 1993 decision, the Board remanded this case to the RO for further development. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that during service, he underwent an excision of a tumor which required the removal of two of his ribs and part of his left lower lung. He asserts that the aforementioned surgery left him susceptible to pneumonia and other respiratory diseases. He further asserts that his current symptomatology includes a possible displacement of the diaphragm as well as feelings of extreme pain and a tearing sensation when he extends his left arm overhead. He contends that these symptoms render him unable to participate in normal physical activities such as golf, bowling, and swimming. 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 the evidence does not support a rating of more than 10 percent for the veteran's service-connected residuals of an excision of a benign tumor from the left lung. FINDINGS OF FACT 1. The veteran's service-connected residuals of an excision of a benign tumor from the left lung is objectively manifested by a scar which is 22 centimeters in length with tenderness and pain over a 4 centimeter area of the left lateral chest and a partial resection of the eighth rib. 2. The veteran does not have any objective findings of recurrence of the tumor or of any pulmonary disorder. CONCLUSION OF LAW The schedular criteria for a disability rating of more than 10 percent for residuals of an excision of a benign tumor from the left lung have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 6820-5297, 7804 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim as to this issue is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a plausible claim. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). The Board initially notes that the National Personnel Records Center (NPRC) has performed searches to locate the veteran's service medical records. However, the NPRC advised that the veteran's records were destroyed in the 1973 fire at that facility. The Board notes that a copy of the veteran's discharge examination is of record despite the destruction of his other records. The discharge examination dated in February 1947, reported that the veteran underwent an operation for a tumor in 1945 which was asymptomatic at the time of the examination. In addition, a well-healed, asymptomatic scar was noted on the posterior left chest starting at the axillary line at the fourth rib and ending at the sixth rib anterol (sic) to left of the mid- clavicular line. In June 1990, the veteran originally filed a claim for compensation benefits. He was afforded a VA examination in August 1990. At the time of that examination, he reported symptomatology including adhesions, a tearing sensation in the left side, limited ability to lift, frequent back pain, and limited ability to participate in physical activities such as swimming. He further reported that two of his ribs were removed during the surgery performed in service to remove a tumor. A physical examination of the veteran's respiratory system revealed that his lungs were normal to percussion and auscultation. The examiner noted a healed left chest surgical scar which was 22 centimeters in length with no deformity in the scar area. The scar was tender over a 4 centimeter area of the left lateral chest. A chest x-ray in August 1990 noted no definite evidence of recurrent disease. Possible status-post thoracotomy with chronic pleural thickening at the left base was also noted on the August 1990 x-ray. Also noted on x-ray in October 1990 was a possible defect involving the left eighth rib which may have been related to the veteran's previous thoracotomy performed in service. The examiner noted that the veteran was right-handed. The diagnosis was history of excision of benign tumor from the left lung in 1945 and pain in incision area of the left chest since the surgery and tenderness noted in scar are at time of the examination. Based on the veteran's discharge examination and the August 1990 VA examination, the veteran was granted entitlement to service connection for residuals of an excision of a benign tumor from the left lung in an October 1990 rating decision. He was assigned a 10 percent rating. The rating decision noted that there was no evidence to support the veteran's report that two ribs were removed during the tumor surgery in service, however, the RO noted that the veteran had tenderness in the area of the scar and assigned a compensable rating. The veteran appealed the 10 percent rating and submitted John Harsany, Jr., M.D.'s report. According to a report of the Hemet Valley Imaging Medical Group, Inc., the veteran underwent an x-ray examination in May 1991. The x-rays revealed residuals of a previous surgery in the left lower lobe with probable scarring at the left costophrenic angle. There was no evidence of active cardiopulmonary abnormality. In a June 1991 notation, John Harsany, Jr., M.D., stated that he had reviewed the x-ray and noted no overt pathology, but further noted the possibility of increased degeneration of the ribs and pulmonary disease in the future due to the left lower lobe scarring and poor mobility. In a January 1992 notation, Dr. Harsany noted that the May 1991 x-rays were consistent with the veteran's history of the removal of two ribs of the left lower lung during surgery to remove a benign tumor. In order to determine the exact nature of any current residuals and in order to resolve how may ribs were actually removed in the 1945 surgery, the case was remanded by the Board and the veteran was afforded two VA examinations. Prior to the examinations, the examiners were instructed to review the veteran's claims file, to include his discharge examination and the report of Dr. Harsany. On December 9, 1993, the veteran was afforded a examination for diseases and injuries of the respiratory system. At that time, the examiner noted the veteran's history as shown on his discharge examination. The examiner further noted that the veteran had no complaints of shortness of breath, dyspnea on exertion, sputum, or hemoptysis. Physical examination revealed that the veteran's lungs were clear to percussion and auscultation. Pulmonary function studies were also conducted. The examiner noted that the x-rays were essentially normal. The examiner concluded that there was no active respiratory disease. The diagnosis was history of removal of benign tumor from the left lung in 1945 with no current pulmonary symptoms or complaints. A second general VA compensation examination was conducted the day following the first examination. At that time, the veteran reported that he had undergone surgery for the removal of a tumor in service. He related that he had no further problems with his lungs, but was unable to participate in sports since the surgery. The veteran also reported that he was unable to lift heavy objects and if he did lift objects of 50 pounds or more, he would feel a tearing sensation in his left chest. He related that he always felt discomfort, but it did not hurt. Physical examination revealed a 15 inch scar following roughly the eighth rib on the left side. The iliac crests were equidistant from and parallel to the floor. The veteran's left shoulder was about 1 inch higher than the right shoulder. The examiner examined the veteran's back and shoulders and reported normal examination of both. The examiner performed range of motion testing which revealed essentially the same range in both arms and shoulders and better range of motion of the left arm and shoulder on flexion and external rotation. The veteran was able to lift both arms above shoulder level. X-rays were taken to determine exactly how may ribs were removed in the 1945 surgical procedure. The x-rays revealed a partial resection of the eighth rib. It was also noted that there were no important changes of the chest. A spirometry report revealed that the veteran's mechanics of ventilation were normal. Currently, the veteran contends that his residuals of an excision of a benign tumor from the left lung is more disabling than is represented by the 10 percent rating. He contends that during service, he underwent an excision of a tumor which required the removal of two of his ribs and part of his left lower lung. He asserts that the aforementioned surgery left him susceptible to pneumonia and other respiratory diseases. He further relates that his current symptomatology includes a possible displacement of the diaphragm as well as feelings of extreme pain and a tearing sensation when he extends his left arm overhead. He contends that these symptoms render him unable to participate in normal physical activities such as golf, bowling, and swimming. The evaluation assigned for a service-connected disability is established by comparing the manifestations indicated in the recent medical findings with the criteria in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). When 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). Several provisions of the rating schedule must be taken into account in rating the veteran's residuals of an excision of a benign tumor from the left lung. Although the same symptoms may not be evaluated under various diagnoses, it is necessary to determine which rating criteria most closely approximate the current manifestations of disability. In this case, the rating criteria that might be applicable include those for benign new growths of any part of the respiratory system, removal of rib(s), and scarring of the skin. Under the rating schedule, benign new growths of any part of the respiratory system is rated based on interference with respiration, using any applicable respiratory analogy under Diagnostic Code 6820. In this case, the VA examinations showed that the veteran does not have any interference with respiration. He did not complain of or exhibit shortness of breath, dyspnea on exertion, sputum, or hemoptysis; his lungs were clear to percussion and auscultation; his spirometry was normal which was indicative of normal mechanics of ventilation; and the examiners found no active pulmonary disease. Therefore, the Board finds that Diagnostic Code 6820 does not warrant consideration of respiratory disorder under any diagnostic code.. The Board has also considered the other provisions of the rating schedule which may be applicable. Under Diagnostic Code 5297, the rating schedule provides a 10 percent rating for the removal of one rib or resection of two or more ribs without regeneration; a 20 percent rating for the removal of two ribs; a 30 percent rating for the removal of three or four ribs; a 40 percent rating for the removal of five or six ribs; and a 50 percent rating for the removal of more than six ribs. 38 C.F.R. Part 4, Diagnostic Code 5297 (1993). The rating schedule also provides ratings under several Diagnostic Codes for scarring of the skin. Disfiguring scars of the head, face and neck are rated under Diagnostic Code 7800. Scars from burns are rated under Diagnostic Codes 7801-7802. Scars which are superficial, poorly nourished, with repeated ulceration are rated under Diagnostic Code 7803. Scars which are superficial, tender and painful on objective demonstration are rated as 10 percent disabling under Diagnostic Code 7804. Under Diagnostic Code 7805, other scars are rated based on the limitation of function of the part affected. Under Diagnostic Code 5201, the rating schedule provides a 20 percent rating when there is limitation of the minor arm to shoulder level; a 20 percent rating when there is limitation of the minor arm to midway between side and shoulder level; and a 30 percent rating when there is limitation of the minor arm to 25 degrees from the side. 38 C.F.R. Part 4, Diagnostic Code 5201 (1993). When all the medical evidence is taken into account, the veteran's service-connected residuals of an excision of a benign tumor from the left lung is objectively manifested by a scar which is 22 centimeters in length with tenderness and pain over a 4 centimeter area of the left lateral chest and a partial resection of the eighth rib. The veteran does not have any objective findings of recurrence of the benign tumor or any pulmonary disorder. Although the veteran's private physician noted that May 1991 x- rays were consistent with a finding that two ribs were removed, the veteran was subsequently examined and x-rayed in order that a definitive determination could be made on that point. After the examination and x-ray, both conducted in December 1993, the examiner found that the veteran had a partial resection of the eighth rib only. The Board finds that this finding is highly probative since the examiner had access to all of the veteran's records and had performed a complete examination. Therefore, the Board finds that Diagnostic Code 5297 is inapplicable as the veteran, at the minimum, did not undergo the removal of one rib or the resection of two or more ribs without degeneration. As noted, the veteran only had a partial resection of one rib. In regard to the ratings provided for scarring of the skin, the Board initially notes that Diagnostic Codes 7800-7803 are inapplicable as the veteran does not have a disfiguring scar of the head, face or neck area; a scar from a burn; or a scar which is poorly nourished with repeated ulceration. Under Diagnostic Code 7805, scars are rated based on the limitation of function of the part affected. The Board notes that the examiner did not find any abnormality of the left shoulder and that the veteran's range of motion of the left arm and shoulder were actually superior to that of his left arm and shoulder. Moreover, the veteran could lift above shoulder level with both arm. Therefore, a rating under that code is also inapplicable. Alternatively, Diagnostic Code 7804 provides a 10 percent rating for superficial scars which are tender and painful on objective demonstration. The Board finds the veteran's disability picture more nearly approximates the criteria required for that rating. As previously noted, the veteran was granted entitlement to service connection for the residuals of an excision of a benign tumor from the left lung. Those residuals were described as essentially consisting of a tender and painful scar. Although he was rated under Diagnostic Code 6820-5297, the rating applicable for the removal of one rib, the rating under that code was based primarily on the veteran's own recollections of one or more ribs being removed during his surgery in service. However, recent examinations revealed that there is only a resection of one rib. Thus, that rating code does not accurately represent the veteran's current disability picture which is more closely represented under Diagnostic Code 7804. However, as noted, a 10 percent rating is the highest rating available under Diagnostic Code 7804. Hence, an increased rating is not warranted under that code. The Board has taken into account the veteran's reports of pain pursuant to 38 C.F.R. § 4.40 (1993), however, the Board concludes that complaints of pain are encompassed within the 10 percent rating and adequately covered by the 10 percent rating under Diagnostic Code 7804. Moreover, at the time of his second December 1993 VA examination, the veteran reported that while he regularly felt discomfort, his left chest area does not actually hurt. In addition, although the clinical findings support a finding that surgery was performed in the left lower area of the chest, there are no clinical findings that the left lower lobe was removed despite the veteran's contentions to the contrary. Likewise, although the veteran also asserted that the 1945 surgical procedure may leave him more susceptible to respiratory diseases in the future, the Board is only reviewing the veteran's current disability picture which does not include any findings of respiratory disease. The Board has also considered an extra-schedular evaluation where the provisions of 38 C.F.R. § 3.321 (1993), but does not find the disability picture so unusual as to render impractical the regular schedular standards. In this regard, the Board notes that the veteran has not had frequent periods of hospitalization for his service-connected residuals of an excision of a benign tumor from the left lung. The Board therefore finds that the negative evidence outweighs the positive evidence. 38 U.S.C.A. § 5107(b) (West 1991). Accordingly, the Board finds that the schedular criteria for a disability rating of more than 10 percent for residuals of an excision of a benign tumor from the left lung have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 6820-5297, 7804 (1993). ORDER The appeal is denied. E. M. KRENZER 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.