BVA9502481 DOCKET NO. 93-11 755 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased (compensable) evaluation for residuals of left spontaneous pneumothorax. 2. Entitlement to an increased (compensable) evaluation for scar, left chest with hypersensitivity. 3. Entitlement to an increased (compensable) evaluation for hemorrhoids. 4. Entitlement to a compensable evaluation under the provisions of 38 C.F.R. § 3.324 (1994). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active service from September 1975 to December 1978. This appeal arises from Department of Veterans Affairs (VA) Huntington, West Virginia, Regional Office (RO) rating actions in March and July 1992 that confirmed and continued noncompensable evaluations for residuals of left spontaneous pneumothorax, and scar on the left chest. The March 1992 rating action also granted service connection for hemorrhoids and assigned a noncompensable evaluation, and the July 1992 rating action denied a compensable evaluation under the provisions of 38 C.F.R. § 3.324. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred in not finding that the evidence of record support compensable ratings for his service-connected disabilities. He reports that he experiences shortness of breath and sees spots before his eyes on strenuous exertion, that he has pain in his left side, and that the area of the scar is tender and painful. He has advanced no specific contentions in regard to his hemorrhoids. 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 preponderance of the evidence is against compensable ratings for residuals of left spontaneous pneumothorax, scar on the left chest, and hemorrhoids; and that the preponderance of the evidence is against a compensable rating under the provisions of 38 C.F.R. § 3.324. FINDINGS OF FACT 1. The service-connected residuals of left spontaneous pneumothorax is principally manifested by complaints of shortness of breath, and a few scattered rhonchi in both bases, with no paroxysms of asthmatic breathing, or chest X-ray evidence of significant abnormality. 2. The service-connected scar on the left chest is principally manifested by subjective complaints of exaggerated pain and tenderness; without keloid formation, adherence to underlying tissue, herniation or limitation of function of the chest. 3. The service-connected hemorrhoids are principally manifested by one external hemorrhoidal tag, non-inflamed; overall the disability is productive of not more that mild to moderate impairment. 4. The veteran's noncompensable service-connected disabilities do not clearly interfere with normal employability. 5. The service-connected residuals of left spontaneous pneumothorax, scar on the left chest, and hemorrhoids are not shown to present an unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. A compensable evaluation for residuals of left spontaneous pneumothorax is not warranted. 38 U.S.C.A. § 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.31, 4.97, Diagnostic Codes 6814, 6602 (1994). 2. A compensable evaluation for scar, left chest, with hypersensitivity, is not warranted. 38 U.S.C.A. § 1155, 5107(a) (West 1991); 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805 (1994). 3. A compensable evaluation for hemorrhoids is not warranted. 38 U.S.C.A. § 1155, 5107(a) (West 1991); 38 C.F.R. § 4.114, Diagnostic Code 7336 (1994). 4. A compensable evaluation is not warranted under the provisions of 38 C.F.R. § 3.324 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1994). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1994) Pneumothorax Service medical records reveal that the veteran experienced a spontaneous pneumothorax, left side, in August 1978. He was treated appropriately, recovered, and was returned to duty in September 1978. When examined prior to separation in December 1978, there were no respiratory complaints or abnormal finding. A VA examination in January 1979 was without any pertinent respiratory findings, and the associated diagnosis was history of spontaneous pneumothorax, left, recovered. On the basis of the above-reported findings, the RO, in January 1979, awarded the veteran service connection for residuals of a left pneumothorax. A noncompensable rating was assigned under the VA's Schedule for Rating Disabilities, 38 C.F.R. § 4.97, Diagnostic Code 6814. When the veteran filed a claim for increased disability benefits in January 1991, he made no reference to hospitalization or treatment for residuals of left spontaneous pneumothorax. When examined by the VA in February 1992 the veteran reported mild shortness of breath on moderate exertion. Physical examination revealed that the chest configuration was normal. Percussion and auscultation revealed no rhonchi or rales. Chest X-ray showed no abnormality. Pulmonary function studies showed mild small airways obstructive disease. Arterial blood gases were fair. The veteran was again examined by the VA in June 1992. At that time he complained of some degree of shortness of breath while walking, although he admitted to playing sports, to include basketball, and the ability to walk 10 blocks. He indicated that he had worked as a surveyor but quit because of lack of stamina. He was currently working as a wood craftsman. He also reported smoking 1 pack of cigarettes a day for the past 15 years. The examiner reviewed the previous pulmonary studies and blood gasses, which showed some mild obstructive pattern, and reported that the estimated predicted values were in the normal range. The examiner noted that the mild, obstructive pattern could be related to the smoking rather than the spontaneous pneumothorax, and that the veteran's subjective complaints seemed far excessive to be related to the spontaneous pneumothorax. On physical chest examination, auscultation and percussion, configuration and excursion, were normal. A few scattered rhonchi were present in both bases but no wheezing was heard. The diagnoses were status post spontaneous pneumothorax, well healed, without any recurrence and no further sequelae; and mild obstructive lung pattern, probably secondary to tobacco dependence Spontaneous pneumothorax is rated at 100 percent for 6 months; thereafter the residuals are rated as analogous to bronchial Asthma. 38 C.F.R. § 4.97, Diagnostic Code 6813 (1994). Bronchial asthma, mild, manifested by paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks warrants a 10 percent rating, which is minimum. 38 C.F.R. § 4.97, Diagnostic Code 6602 (1994). The objective evidence of record does not show manifestations associated with the residuals of spontaneous left pneumothorax which would support a compensable evaluation. The veteran smokes, plays sports, and is generally active. There is no evidence that in the decade and a half since service that he has either sought or required medical treatment for the residuals of spontaneous left pneumothorax. His subjective complaints of shortness of breath do not approximate high pitched expiratory wheezing and dyspnea (difficult or labored breathing). The mild obstructive lung pattern shown on pulmonary function studies is, according to the examining physician, more likely associated with his long term cigarette smoking. Two respiratory examinations within a 4-month period fail to demonstrate symptoms compatible with the criteria for a compensable evaluation. On an overview of all the evidence of record the Board is not persuaded by the evidence that a compensable evaluation is in order for the residuals of spontaneous left pneumothorax. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.97, Diagnostic Codes 6814, 6602. Scar Service medical records reveal that the left chest scar was the site of catheter insertion into the veteran's left chest during the spontaneous pneumothorax in service. There is no record of any complications associated with the intubation. When examined by the VA in January 1979 the veteran reported hypersensitivity over the left breast, not as severe as in the period right after the spontaneous pneumothorax. Examination revealed an area of hypersensitivity in the 6th intercostal space, left side, extending from the site of the indwelling catheter, over the left breast toward the midline. The pertinent diagnosis was hypersensitivity due to previous trauma to the 6th left intercostal nerve, following the spontaneous pneumothorax. In January 1979, the RO awarded the veteran service connection and assigned a noncompensable rating for a left chest scar under 38 C.F.R. § 4.114, Diagnostic Code 7805. The VA examination in February 1992 revealed a 3 cm. by 0.3 cm. scar on the left thorax, along the anterior axillary line. The scar was nontender, and there was no keloid formation, adherence, herniation, inflammation, swelling, depression, or ulceration. The examiner noted that there was no limitation of function of the thorax due to the scar. The diagnosis was left thorax scar, secondary to spontaneous pneumothorax. When examined by the VA in June 1992 the veteran reported subjective tenderness over the scar area. The scar was described as being 3 to 4 centimeters, elliptical in shape, in the left anterior thorax where the thoracostomy tube was placed. The scar was soft, and without keloid formation or adherence. There was no evidence of herniation, and no limitation of function of the part affected. The examiner noted that although the veteran seemed to jump during the examination of the scar area, he also seemed to be tender in areas where the scar was not present. It was recorded that other areas elicited the same reaction from the veteran. The examiner opined that tenderness and painfulness could not be demonstrated objectively since the veteran's reaction was rather exaggerated. Scars that are superficial, tender and painful on objective demonstration warrant a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7804 (1994). Other scars are rated on limitation of function of part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805 (1994). While there was initially some hypersensitivity in the area of the thoracotomy tube scar after the spontaneous pneumothorax, the hyperesthesia appeared to decrease in the interval after the event. The veteran's current subjective complaints have changed somewhat since 1979. It is for consideration that when the veteran reopened his claim for increased disability benefits in January 1991 he made no specific reference to problems with the scar, and on examination in February 1992 there were no recorded complaints relative to the scar or surrounding area. In the April 1991 notice of disagreement the veteran only referred to pain in the left side, front and back, "where the pneumothorax was." There was no specific reference to the scar area. Later in April 1992 he reported that the scar was "not tender", and that the left side of the chest hurt all of the time if any pressure was applied, even to the back of the chest. The examining physician in June 1992 indicated that the veteran's responses were exaggerated, and objectively there was no limitation of function of the area or objective demonstration of a tender and painful scar. The veteran has not reported any medical treatment for the left thorax scar since service, and recent examination did not reveal any objective residuals which would support a compensable evaluation for the scar. There is no basis for a compensable evaluation for scar, left chest. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805. Hemorrhoids Service medical records dated in September 1976 reflect that the veteran was found to have an external hemorrhoid. No hemorrhoid were found on VA examination in January 1979. When examined by the VA in June 1992 the veteran denied any history of bleeding, soiling, incontinence or diarrhea. There was no history of tenesmus, dehydration, malnutrition, anemia or fecal leakage. The veteran did report "flare ups" every couple of months, maybe 4 months, lasting 1 to 2 days, after prolonged standing. He would treat himself with sitz baths and an over the counter ointment. Physical examination revealed one external hemorrhoidal tag, non-inflamed. Hemorrhoids, external or internal. when large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, warrant a 10 percent rating. When mild or moderate, a noncompensable rating is assigned. 38 C.F.R. § 4.114, Diagnostic Code 7336. (1994). A compensable rating for hemorrhoids requires large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue evidencing frequent recurrence. Such is not the case for the veteran. He has, as shown on recent examination, one non- inflamed hemorrhoidal tag. There is no basis for a compensable rating for hemorrhoids. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7336. Multiple Noncompensably Rated Disorders Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the 1945 Schedule for Rating Disabilities the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324 (1994). In this case the veteran reports termination of a job as a surveyor because of lack of stamina, which he attributed to the residuals of left spontaneous pneumothorax. However, his contention is not backed by any supporting medical evidence, and in fact he reports playing sports. He has not provided any specifics as to how any of his service-connected disabilities interfere with his current employment or employability. In the past he has not sought any treatment for his disabilities, and he has not presented any evidence showing that he is currently receiving any treatment. It has not been shown that his service- connected disabilities are of such character as to clearly interfere with normal employability. 38 C.F.R. § 3.324. Extraschedular Evaluation There is no indication in the record that the schedular evaluations are inadequate to evaluate the impairment of the appellant's earning capacity due to his disabilities, and they do not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Thus, the provisions of 38 C.F.R. § 3.321 (1994) relating to extraschedular evaluations are not applicable here. We have also considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4 (1994), whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). We have found no section that provides a basis upon which to assign a higher disability evaluation. ORDER A compensable evaluation for residuals of left spontaneous pneumothorax, left chest scar with hypersensitivity, and hemorrhoids is denied. A 10 percent rating under the provisions of 38 C.F.R. 3.324 is denied. RENÉE M. PELLETIER 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.