BVA9500199 DOCKET NO. 92-11 055 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased evaluation for bronchial asthma with chronic obstructive pulmonary disease, currently evaluated as 30 percent disabling. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Julia M. Kurtz, Associate Counsel INTRODUCTION The veteran served on active duty from April 1953 to April 1955. This appeal arises from a May 1990 rating decision of the Atlanta, Georgia, Regional Office (RO) which increased the evaluation assigned to the veteran's lung disorder to 30 percent. In January 1991, the RO reclassified the veteran's lung disorder as bronchial asthma with chronic obstructive pulmonary disease. In March 1991, the veteran testified before a hearing officer at the RO. This case was previously before the Board in February 1993 when it was remanded for further development. In March 1994, the RO denied entitlement to a total disability rating for compensation purposes based on individual unemployability. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that manifestations of his service-connected bronchial asthma with chronic obstructive pulmonary disease are more severe than currently evaluated. He contends that he has weekly attacks of asthma, receives temporary relief from his medications, and that his activities are very limited as he cannot cut the grass or work in the garden. He also asserts that due to his service-connected disorder, he is unemployable. 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(s). 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 the veteran's claim for an evaluation in excess of 30 percent for bronchial asthma with chronic obstructive pulmonary disease and a total disability rating for compensation purposes based on individual unemployability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Manifestations of the veteran's service-connected bronchial asthma with chronic obstructive pulmonary disease are no more than moderate in severity. 3. The veteran is service-connected only for bronchial asthma with chronic obstructive pulmonary disease, evaluated as 30 percent disabling. 4. The veteran has a tenth grade education, training in sign painting, and reports occupational experience as a route/salesman and truck driver. 5. The veteran's service-connected lung disorder, which is his sole service-connected disability, is not of such severity as to preclude him from following some form of substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 30 percent for bronchial asthma with chronic obstructive pulmonary disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4, § 4.96, Diagnostic Codes 6602, 6603 (1993). 2. A total disability rating for compensation purposes based on individual unemployability due to the veteran's service-connected disability is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine if the veteran has submitted well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (VA) has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. Our review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. I. Bronchial Asthma with Chronic Obstructive Pulmonary Disease The evaluation assigned for a service-connected disability is established by comparing the manifestations reflected by the recent medical findings with the criteria in the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1993). The veteran is currently in receipt of a 30 percent evaluation under Diagnostic Codes 6602 and 6603. The rating schedule provides a 60 percent evaluation for severe asthma with frequent attacks of asthma (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication and more than light manual labor precluded. A 30 evaluation is warranted for moderate asthma with rather frequent asthmatic attacks (separated by only 10 - 14 day intervals) with moderate dyspnea on exertion between attacks. A note provides that in the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record. 38 C.F.R. Part 4, Diagnostic Code 6602. Under Diagnostic Code 6603, a 60 percent evaluation is warranted for severe pulmonary emphysema reflected by exertion dyspnea sufficient to prevent climbing one flight of stairs or walking one block without stopping, and ventilatory impairment of severe degree confirmed by pulmonary function tests with marked impairment of health. A 30 percent evaluation is provided for moderate pulmonary emphysema with moderate dyspnea occurring after climbing one flight of steps or walking more than one block on level surface, with pulmonary function tests consistent with findings of moderate emphysema. The provisions of 38 C.F.R. § 4.96(a) state that when rating coexisting respiratory conditions, ratings under diagnostic codes 6600 to 6618 will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. The service medical records reveal that in March 1955, the veteran was evaluated following a nine month history of cough and wheezing. Physical examination revealed clear lungs. The impression was that the veteran had developed mild bronchial asthma. Although not disabling at that time, the examiner recommended separation. The veteran's separation examination, dated in March 1955, noted mild bronchial asthma. At a VA examination in January 1956, the veteran complained of constant non-productive cough and wheezing. Upon physical examination, there was no dyspnea at rest or following exercise, no cyanosis, clubbing of the fingers or engorgement of the jugulars. Breathing was vesicular with inspiration longer than expiration. A few rhonchi were heard throughout. An x-ray study of the chest was interpreted as showing increase in density in the hilus of the right lung, accentuation of markings with no definite infiltration periphery; the left lung was similar to the right. The diagnosis was bronchial asthma. Based upon the evidence of record, in January 1956, the RO established service connection for bronchial asthma and assigned a 10 percent evaluation, effective from April 9, 1955. VA examination in March 1960 noted bronchial asthma, extrinsic with allergies to dust and fungi, with about 2 episodes of asthma each week. In July 1977, the veteran indicated that he used an inhaler. He also gave a history of having undergone a laminectomy of L4-5 on the right with diskectomy and lateral fusion of L4-5 on the right, posterior fusion of L4 and 5 on the left, and H-graft to L4 and 5. He stated that he was in an automobile accident in 1967, fracturing the right tibia and fibula. He underwent repeat bone grafts due to infection. He has a limp on the right side due to shortening of the leg and was told not to do any extensive walking, lifting or straining. He hasn't worked in the past eight years. Upon physical examination, there were scattered wheezes and sibilant rales on expiration and inspiration with equal expiratory and inspiratory phases. The chest was clear to percussion throughout. X-ray study was interpreted to show no active pulmonary infiltrate. The diagnoses were residuals, lumbar laminectomy, with excision herniated nucleus pulposus, L4-5 and with fusion L4, L5, symptomatic; residuals of fracture, right tibia and fibula, with fusion and one inch shortening of the right leg; and bronchial asthma, chronic, moderate. When examined in March 1979, the impression was chronic recurring bronchial asthma, presently in remission, with excellent pulmonary function found this examination. The evidence of record shows the veteran was hospitalized by the VA in January 1982 for an acute exacerbation of shortness of breath. The diagnosis was chronic obstructive pulmonary disease. At a VA examination in June 1983, the veteran complained of attacks of shortness of breath and wheezing. The examiner stated that, in recent years, the emphasis has been on chronic obstructive pulmonary disease and that pulmonary function tests have shown a mild obstructive ventilatory defect. There was an occasional wheeze heard on examination. The diagnoses were bronchial asthma, and chronic obstructive pulmonary disease, not found. In February 1984, the veteran was hospitalized at Rockdale County Hospital after an episode of acute asthma. The veteran gave a history of one to two asthmatic attacks a year. The diagnosis was acute asthmatic attack. A medical statement from Howard S. Ellison, M.D., indicates that the veteran was rehospitalized in March 1984 for an acute asthmatic attack. Chest x-ray dated March 1984 was consistent with chronic obstructive pulmonary disease. The veteran had subsequent asthmatic attacks in April 1984, November 1985, and February 1986. VA outpatient treatment records dating from December 1988 show the veteran was seen every few months in the pulmonary clinic for follow-up visits and refill of medications. The veteran was generally noted to be doing well with clear lungs and stable chronic obstructive pulmonary disease. In May 1990, the RO increased the evaluation assigned to bronchial asthma to 30 percent, effective from June 2, 1989. At a VA examination in October 1990, the veteran presented with subjective complaints of increasing shortness of breath and a cough. He stated that he can't have sex with his wife anymore or cut the grass. The objective findings revealed that breathing was carried out with a combination of intercostal and diaphragmatic muscle action. On palpation, the tactile fremitus was slightly decreased over the left hemithorax posteriorily. There were no rales or rhonchi heard. A pulmonary function test conducted in September 1990 was reviewed which showed 81% of forced expiratory volume, 104% of normal forced vital capacity, and 78% ratio. These values were indicated to be within normal range. The diagnoses were bronchial asthma, history of, presently quiescent, and chronic obstructive pulmonary emphysema. Based upon this evidence, a January 1991 rating decision reclassified the veteran's lung disorder as bronchial asthma with chronic obstructive pulmonary disease and continued the 30 percent evaluation. In December 1990, the veteran was hospitalized for acute chest pain. The veteran's medical history included steroid dependence for several years. Upon examination, it was noted the veteran's chronic obstructive pulmonary disease and asthma were stable. The principal diagnosis was unstable angina, improved, complications of tachycardia, hypertension, and chronic obstructive pulmonary disease. In January 1991, the veteran was hospitalized for asthmatic bronchitis exacerbation, etiology upper respiratory infection. It was noted the veteran also had chronic obstructive pulmonary disease with small airway disease. Pulmonary function tests conducted in November 1990 were reviewed and interpreted to show small airway disease with an FEVIK/FVC ratio of 78 percent. At discharge, the veteran had very few expiratory wheezes. Discharge diagnosis was chronic obstructive pulmonary disease with asthmatic bronchitis exacerbation. When seen at the pulmonary clinic in April 1991 and August 1991, the veteran's lungs were clear. He was noted to be steroid dependent for chronic obstructive pulmonary disease. Pulmonary function testing conducted in September 1990 was reviewed in August 1991. The assessment was mild chronic obstructive pulmonary disease, stable, by pulmonary function test in September 1990. The veteran testified before a hearing officer at the RO in March 1991. He testified that: he can walk about 2 miles if feeling good; on a bad day, he can only walk around the house or yard; his subjective complaints include shortness of breath, wheezing, and coughing up sputum; he has severe attacks which come and go; he currently had shortness of breath after walking a block and a half; he is able to climb a flight of stairs; he is on several medications and will use his inhaler and nebulizer every few hours during an emergency; he tries to help his wife around the house; he wears a mask while cutting the grass; not knowing when his asthma attacks will occur is very stressful; his early retirement was not due to his pulmonary problems but due to the disability retirement on his Social Security due to an automobile accident; if his right leg was okay, he does not believe he could go back to work on a full-time basis because of his breathing and being susceptible to an attack at any time; he believes his asthmatic attacks have increased in duration and frequency. Although the veteran complains that his lung disorder has increased in severity and that he merits a higher evaluation, the objective medical evidence does not support his contentions, and the Board finds that the negative evidence outweighs the positive. Applying the provisions of 38 C.F.R. § 4.96, the Board finds that the evidence reflects that the veteran's symptomatology is more reflective of chronic obstructive pulmonary disease than asthma and that his lung disorder should therefore be initially evaluated under Diagnostic Code 6603. When all the medical reports are taken into account, it appears the veteran's lung disorder is primarily manifested by certainly no more than moderate impairment of pulmonary function, with no more than moderate dyspnea shown after walking more than one block on level surface, and complaints of shortness of breath. Pulmonary function tests previously referred to as having been conducted in September 1990 were reviewed in August 1991 and were interpreted to have shown "mild" and "stable" chronic pulmonary obstructive disease. The criteria for a higher rating of 60 percent for chronic obstructive pulmonary disease require severe chronic obstructive pulmonary disease with exertional dyspnea sufficient to prevent climbing one flight of stairs or walking one block without stopping, ventilatory impairment of severe degree with marked impairment of health. However, this has not been demonstrated on repeated examinations, and the examiners have noted the veteran's lung disorder to be of a mild degree and stable. Moreover, the overall disability is not shown to be so severe as to warrant elevation to the next higher rating per 38 C.F.R. § 4.96. The Board has considered the veteran's testimony regarding his lung disorder and finds it credible. However, the Board notes that the veteran's symptomatology as reflected by his testimony is consistent with the current 30 percent rating. The veteran testified that he is able to walk up to 2 miles at times, can climb stairs, and mow the lawn. The Board also points out that the veteran's symptomatology is also consistent with a 30 percent rating under Diagnostic Code 6602 for bronchial asthma. The evidence of record does not show frequent attacks of asthma occurring one or more times weekly, marked dyspnea on exertion between attacks with only temporary relief by medication and more than light manual labor precluded such as would constitute "severe" impairment under that code. Accordingly, the Board concludes that a rating in excess of 30 percent for bronchial asthma with chronic obstructive pulmonary disease is not warranted. We have considered the provisions of 38 C.F.R. § 3.321(b)(1) regarding the assignment of an extraschedular evaluation for this disability, however, it is not found that this provision is applicable because the veteran's bronchial asthma with chronic obstructive pulmonary disease is not so unusual or exceptional, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular rating standards. The recent record shows one hospitalization in January 1991 for an acute exacerbation of the veteran's lung disorder; the December 1990 hospitalization was due to cardiac chest pain. Furthermore, the veteran testified that he discontinued employment due to an automobile accident which affected his right leg and not due to his pulmonary problems. II. Total Disability Rating for Compensation Purposes based on Individual Unemployability Total disability ratings for compensation purposes based on individual unemployability may be assigned where the combined schedular rating for the veteran's service-connected disability is less than 100 percent when it is found that such disorder is sufficient to render the veteran unemployable without regard to either his advancing age or the presence of any nonservice- connected disorders. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.340, 3.341 (1993). The provisions of 38 C.F.R. § 4.16(a) (1993), elaborate, in pertinent part, that a total disability rating may be assigned where the schedular rating is less than total, provided that if there is only one service-connected disability, it shall be ratable at 60 percent or more. Service connection is in effect for bronchial asthma with chronic obstructive pulmonary disease, currently evaluated as 30 percent disabling. The record relates that the veteran has a tenth grade education, training in sign painting, and reports occupational experience as a route/salesman and truck driver. He stated that he last worked full-time in 1970 and stopped due to his disability. He stated that he has tried to obtain employment as a truck driver. In turning the to facts of the instant appeal, it is observed that service connection is presently in effect solely for bronchial asthma with chronic obstructive pulmonary disease, which is evaluated as 30 percent disabling. Therefore, the veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a). Given this fact, the Board next needs to address whether the veteran's service-connected disability nevertheless renders him totally unemployable on an extraschedular basis. 38 C.F.R. § 3.321. The Board acknowledges that the veteran's lung disability impairs his ability to perform those industrial activities which require strenuous work. However, the veteran has significant problems with lumbosacral disc disease and, as mentioned during his personal hearing, and as noted elsewhere, the veteran has not worked since 1970, due to injuries received in an auto accident. He also reports having been in receipt of Social Security benefits since 1970 by reason of such difficulties. Due to the age of these records and the veteran's testimony that the benefits were granted based on disability other than the service connected pulmonary disability, it is the opinion of the reviewing Board member that to remand this matter in an effort to obtain such records would unduly prolong reaching a final decision in this case, given that such records are unlikely to have any probative value. The fact remains that the veteran's sole service connected disability is not clinically shown to have increased in severity to an extent as to preclude the veteran from obtaining and/or maintaining gainful employment of some form, albeit of a nonstrenuous nature. His pulmonary problems are not shown to produce more than "moderate" impairment at this time, and this aspect of the appeal is also denied. ORDER The appeal is denied. JEFF MARTIN 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.