BVA9506313 DOCKET NO. 90-30 301 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability evaluation for bronchial asthma, currently evaluated as 10 percent disabling. 2. Entitlement to an increased disability evaluation for peptic ulcer disease with esophageal diverticulum, currently evaluated as 20 percent disabling. 3. Entitlement to an increased disability evaluation for plantar warts with dyshidrosis of the feet, currently evaluated as 10 percent disabling. 4. Entitlement to an increased disability evaluation for residuals of a fractured transverse process, C5, with brachial palsy, currently evaluated as 10 percent disabling. 5. Entitlement to a total disability evaluation for compensation purposes, based upon individual unemployability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.W. Engle, Counsel INTRODUCTION The appellant served on active duty from November 1973 to April 1978 and from May 1978 to November 1983. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a decision dated in April 1990 by the St. Petersburg, Florida, Department of Veterans Affairs Regional Office (VARO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the disabilities at issue warrant higher disability evaluations. He further argues that his service-connected disabilities combine to render him 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. 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 appellant's claims to increased disability evaluations for bronchial asthma, peptic ulcer disease with esophageal diverticulum, plantar warts with dyshidrosis of the feet, residuals of a fractured transverse process, C5, with brachial palsy as well as entitlement to a total disability evaluation for compensation purposes, based upon individual unemployability. FINDINGS OF FACT 1. The appellant's mild bronchial asthma is manifested by paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks. 2. The appellant's peptic ulcer disease with esophageal diverticulum is manifested by a small ulcer of the pylorus which is not productive of anemia, weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. 3. The appellant's plantar warts were not shown to be productive of symptoms analogous to eczema with exudation or constant itching with extensive lesions or marked disfigurement. 4. The appellant's residuals of a fractured transverse process, C5 with brachial palsy is manifested by mild weakness in the left deltoid and loss of sensation in the area of the axillary nerve and upper part of the left arm and is not productive of symptoms analogous to severe incomplete paralysis of the long thoracic nerve. 5. The appellant is currently service-connected for bronchial asthma, rated 10 percent disabling; peptic ulcer disease with esophageal diverticulum, rated 20 percent disabling; plantar warts with dyshidrosis of the feet, rated 10 percent disabling and residuals of a fractured transverse process, C5, with brachial palsy, rated 10 percent disabling. The combined disability evaluation is 40 percent. 6. The appellant reported that he completed high school and on VA examination in November 1993 he noted that he last worked as a painting estimator in 1991. 7. The appellant's service-connected disabilities are not of such severity as to preclude him from obtaining or retaining some form of substantially gainful employment. CONCLUSIONS OF LAW 1. The schedular criteria for a disability evaluation in excess of 10 percent for bronchial asthma are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10, Diagnostic Code 6602 (1994). 2. The schedular criteria for a disability evaluation in excess of 20 percent for peptic ulcer disease with esophageal diverticulum are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10, Diagnostic Code 7305 (1994). 3. The schedular criteria for a disability evaluation in excess of 10 percent for plantar warts with dyshidrosis of the feet are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10, Diagnostic Code 7819 (1994) 4. The schedular criteria for a disability evaluation in excess of 10 percent for residuals of a fractured transverse process, C5, with brachial palsy are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10, Diagnostic Code 8519 (1994). 5. The criteria for the assignment of a total disability evaluation for compensation purposes based upon individual unemployability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claims are well grounded. 38 U.S.C.A.§ 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Review of the record reveals that the appellant is seeking higher disability evaluations for his service-connected bronchial asthma, rated 10 percent disabling; peptic ulcer disease with esophageal diverticulum, rated 20 percent disabling; plantar warts with dyshidrosis of the feet, rated 10 percent disabling and residuals of a fractured transverse process, C5, with brachial palsy, rated 10 percent disabling. 38 U.S.C.A. § 1155 (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based upon average impairment of earning capacity. 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1994); Peyton v. Derwinski, 1 Vet.App. 282 (1991). Factual Background VA outpatient treatment reports dated from September 1988 to October 1989 noted that the appellant was seen with a diagnosis of thoracic outlet syndrome. In March 1990 a VA examination was conducted. The appellant reported that he developed asthma while at Ft. Benning, Georgia in 1974. He noted that he was placed on profile and prescribed inhalers. He claimed to have experienced several attacks during service and that he currently had attacks twice a year with the use of Primatene. He denied chest pain and indicated that he only experienced dyspnea with the attacks. He stated that he sleeps flat and that he only coughed during an attack. On examination there was no ankle edema and no intermittent claudication. Respirations were 14 and there was no venous engorgement of the neck veins. There was no clubbing of the digits and the heart revealed no murmurs. His pulse in the lower extremities was good and equal and his maximum expiration was 32 inches and maximum inspiration was 35 inches. X-ray examination of the lungs revealed no abnormalities and the diagnosis was chronic asthmatic bronchitis. On examination of the digestive system, the appellant reported that he developed bleeding peptic ulcers while at Ft. Bragg, North Carolina in 1977. He indicated that he was hospitalized in intensive care for approximately 6 days as a result of the ulcers. He noted that he has had several episodes of blood in the stool in the past, but none recently. He complained of having a poor appetite and stated that his bowel movements were good with no melena and no recent bleeding. He reported complaints of occasional nausea and epigastric pain for which he takes Pepto Bismal. He further indicated that he had no recent weight loss. On physical examination it was noted that the appellant tensed his abdomen. No masses were felt and slight tenderness was noted in the epigastrium. The diagnosis was history of peptic ulcer disease. With respect to the feet, the appellant reported complaints of painful feet. He stated that he had plantar warts and had difficulty walking and standing for any length of time. On examination dermatophytosis of both soles with some desquamation was noted. He experienced difficulty standing on his toes and heels and there appeared to be loss of the longitudinal arch. There was no callous formation; however, it was noted that they may be present but obscured by the desquamation of the skin of the plantar area. X-ray examination of the feet revealed no spurs in the plantar aspect of either calcanei. The diagnosis was history of painful feet and plantar warts, rule out pes planus. On musculoskeletal system examination the appellant reported that he had a hyperflexion injury to the neck in 1977, sustaining a fracture of the transverse process of C7. He indicated that subsequent to the injury he developed bilateral neck pain with radiation to the arms. In July 1982 he underwent a left first rib resection and he subsequently experienced bilateral neck pain with radiation to the shoulders and arms with upper extremity weakness. He further reported parasthesias of the forearms and hands. He was seen by the Orthopedic Service and was found to have atrophy of the anterior deltoid muscle, the medial long heads of the triceps muscles and infraspinatus muscle the left side. It was felt that the appellant had sustained a brachial plexus palsy with paralysis paresis of the muscles supplied by the posterior recall of the brachial plexus, the deltoid, triceps, wrist extensors and finger extensors. It was noted that he had experienced significant improvement with physical therapy, muscle strengthening exercises, including use of a TENS unit and anti-inflammatory medication. On physical examination, the appellant, in the upright sitting position, flexed his cervical spine 55 degrees, extended backwards 45 degrees, with lateral rotation 40 degrees. There was normal range of motion in the right shoulder and forward flexion and abduction of the left shoulder was to 160 degrees. The examiner further indicated that there appeared to be full range of motion of the elbows, wrists and fingers. X-ray examination of the glenohumeral joint was within normal limits. X-ray examination of the cervical spine revealed degenerative disc space narrowing through C6-7 with very small anterior and posterior osteophytes and very mild neural foraminal encroachment bilaterally at C5-6, C 6-7. It was also noted that only the proximal posterior 3-4 cm. of the left first rib remained which was considered to be well corticated. The diagnoses included status post injury to the cervical spine, status post resection of the 1st left rib, history compatible with brachial plexus injury with weakness of the effective muscles of the left arm and hands. In November 1993 a VA examination was conducted. On respiratory examination a history of asthmatic bronchitis was noted. There was no wheezing and the chest was negative to auscultation and percussion. Examination of the skin revealed plantar warts in the soles of his feet. No other evidence of fungus or dermatitic conditions was noted. The diagnoses included bronchial asthma, by history and plantar warts. On neurological examination, cranial nerves II -XII were grossly intact. Motor examination revealed mild weakness of the left deltoid, with otherwise normal strength testing. No obvious atrophy was noted on examination. Reflexes and coordination were intact and the appellant's gait was considered to be normal. Sensory examination revealed loss of sensation in the area of the axillary nerve and the upper part of the left arm plus an area of C7-8 loss in the same extremity. The diagnostic impression was residual brachiplexus injury with mild motor weakness and sensory loss which the examiner noted was considered to be static. The examiner further indicated that there had been no significant change in the appellant's status over many years. On examination of the digestive system, the appellant reported complaints of occasional black stools and stomach pains with weakness. Physical examination revealed pain in the right side of the mid-epigastrium with abdominal muscle guarding. There was no rectal bleeding and no hepatosplenomegaly. The appellant reported that he became nauseated two to three times a month. He further noted no significant diarrhea and no constipation problems. An upper gastrointestinal series (upper GI) was conducted which revealed a small ulcer of the pylorus or base of the duodenal bulb. X-ray examination of the esophagus revealed normal swallowing function without evidence of intraluminal defect or esophageal wall abnormalities. The diagnosis was duodenal ulcer with occasional bleeding, pyloric ulcer confirmed with x-ray. Analysis Bronchial Asthma The appellant's service-connected bronchial asthma is currently evaluated pursuant to Diagnostic Code 6602, which provides, in pertinent part, that mild bronchial asthma characterized 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 disability evaluation. Moderate bronchial asthma characterized by asthmatic attacks rather frequent (separated by only 10 to 14 day intervals) with moderate dyspnea on exertion between attacks warrants a 30 percent disability evaluation. Severe bronchial asthma is characterized by frequent attacks of asthma (one or more weekly), marked dyspnea on exertion between attacks with only temporary relief by medication and where more than light manual labor is precluded and warrants a 60 percent disability evaluation. In weighing the evidence of record, the Board concludes that the weight of the evidence is against the appellant's claim to an increased disability evaluation for bronchial asthma. The appellant's statements and contentions have been carefully considered by the Board; however, there is no evidence of record to establish that the appellant's service-connected bronchial asthma is characterized by asthma attacks separated by only 10 to 14 day intervals with moderate dyspnea on exertion between attacks such to meet the criteria for a 30 percent disability evaluation. In fact, On VA respiratory examination in March 1990, the appellant reported that he experienced asthma attacks only twice a year and indicated that he only experienced dyspnea during an attack. On physical and x-ray examination no respiratory abnormalities were noted. Furthermore, on VA respiratory examination in November 1993, there was no wheezing and the appellant's chest was negative to auscultation and percussion. The diagnosis at that time was bronchial asthma, by history. In view of the above, entitlement to an increased disability evaluation for bronchial asthma is not warranted. Peptic Ulcer Disease The appellant's service-connected peptic ulcer disease with esophageal diverticulum is currently evaluated pursuant to Diagnostic Code 7305, which provides, in pertinent part, that a moderate duodenal ulcer, manifested by recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous moderate manifestations warrants a 20 percent disability evaluation. A moderately severe duodenal ulcer with less than severe impairment of health manifested by anemia and weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year warrants a 40 percent disability evaluation. A severe duodenal ulcer with pain only relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of a definite impairment of health warrants a 60 percent disability evaluation. The Board notes that by rating decision dated in April 1994, VARO granted an increased disability evaluation from 10 percent to the 20 percent level effective from November 9, 1993, for peptic ulcer disease with esophageal diverticulum. After weighing the evidence of record, that decision is affirmed. While the appellant reported complaints of occasional black stools with stomach pains and a small ulcer of the pylorus or base of the duodenal bulb was found on upper GI examination, the record reflects no findings of anemia and weight loss, or recurrent incapacitating episodes related to the ulcer, averaging 10 days or more in duration at least four or more times a year. Furthermore, x-ray examination of the esophagus revealed that the appellant had normal swallowing function without evidence of intraluminal defect or esophageal wall abnormalities. The appellant's statements and contentions in support of his claim to an increased disability evaluation for peptic ulcer disease with esophageal diverticulum have been carefully evaluated by the Board; however, those contentions are found to be outweighed by the objective evidence of record. Accordingly, entitlement to a disability evaluation in excess of 20 percent for peptic ulcer disease with esophageal diverticulum is not warranted. Plantar Warts with Dyshidrosis The appellant's plantar warts with dyshidrosis are currently evaluated pursuant to Diagnostic Code 7819 which provides, in pertinent part, that benign new skin growths are rated as for eczema, dependent upon location, extent, and repugnant or otherwise disabling character of manifestations. Diagnostic Code 7806 provides that symptoms of eczema with slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area warrant a noncompensable disability evaluation. Eczema with exfoliation, exudation or itching, if involving an exposed surface or extensive area warrants a 10 percent disability evaluation and where there is exudation or constant itching, extensive lesions or marked disfigurement, a 30 percent disability evaluation is warranted. The appellant's reports of painful feet and difficulty standing or walking for any length of time have been carefully considered in light of the objective medical evidence of record. While plantar warts on the soles of the appellant's feet were found on VA examination, the Board notes that the presence of flat feet was also noted. Furthermore, there was no evidence to establish a relationship between the plantar warts and the appellant's reported complaints nor is there any evidence of dyshidrosis of the feet. In addition, although the appellant has indicated that it is his belief that he has "spurs" in his feet, x-ray examination of the feet conducted during VA examination in March 1990 noted no spurs in the plantar aspect of both calcanei. In view of the lack of evidence to establish the presence of symptoms analogous to eczema with exudation or constant itching with extensive lesions or marked disfigurement, the Board concludes that the appellant's service-connected plantar warts are appropriately evaluated at the 10 percent level. Residuals of a Fractured Transverse Process, C5 with Brachial palsy The appellant's residuals of a fractured transverse process, C5, with brachial palsy is currently evaluated pursuant to Diagnostic Code 8519 which provides, in pertinent part, that symptoms analogous to mild incomplete paralysis of the long thoracic nerve warrant a noncompensable disability evaluation. Moderate incomplete paralysis warrants a 10 percent disability evaluation and severe incomplete paralysis warrants a 20 percent disability evaluation. Complete paralysis of the long thoracic nerve with inability to raise the arm above the shoulder level and winged scapula deformity warrants a 30 percent disability evaluation for the major side and a 20 percent for the minor side. (Major referring to the right side should the appellant be right-handed and to the left side should the appellant be left-handed.) Significant findings noted on the most recent VA neurological examination conducted in November 1993 included the presence of mild weakness of the left deltoid, with no obvious muscle atrophy. In addition, the appellant's reflexes and coordination were intact and sensory examination revealed loss of sensation in the area of the axillary nerve and the upper part of the left arm. No other neurological disability was found to be attributable to the service-connected residuals of a fractured transverse process, C5, with brachial palsy and the diagnostic impression was residual brachiplexus injury with mild motor weakness and sensory loss which is static. The VA neurologist further indicated that there had been no significant change in the appellant's (neurological) status over many years. The Board has considered all other potentially applicable provisions under 38 C.F.R Part 4; however, the limitation of motion of the cervical spine and the left shoulder, identified as cervical spine forward flexion to 55 degrees, extension to 45 degrees and rotation to 40 degrees and left shoulder forward flexion and abduction to 160 degrees, are no more than slight pursuant to Diagnostic Codes 5201 and 5290 and not productive of a disability evaluation in excess of 10 percent. In view of the above, the undersigned concludes that entitlement to an increased disability evaluation for residuals of a fractured transverse process, C5, with brachial palsy beyond the 10 percent level is not warranted. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1994). There is no evidence that any of the claimed service-connected disabilities present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Hence, referral by VARO to VA official under the above-cited regulation was not required. Total Rating Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16 (1993). In this case, we note that the appellant's combined disability evaluation is 40 percent and that the schedular criteria pursuant to 38 C.F.R. § 4.16(a) (1993), have not been met. While the appellant contends that his unemployment is the result of the combination of his service-connected disabilities, the evidence of record does not demonstrate that his service- connected disabilities alone, preclude him from substantially gainful employment. It is significant to note that the record does not reflect extended periods of outpatient treatment or any periods of hospitalization for his service-connected disabilities. Nor is it shown that there is evidence of marked interference with employment characterized by periods of unemployment attributable solely to those disabilities. 38 C.F.R. § 3.321(b)(1) (1992). Although the appellant's service-connected disabilities are significant and such as to limit his occupational opportunities, they are not shown to be of such severity as to preclude some form of sedentary employment which does not entail extensive physical exertion. See Van Hoose v. Brown, 4 Vet.App. 361 (1993). In reaching this conclusion we place particular emphasis upon the consistently mild nature of the appellant's multiple disabilities over a period of years as reflected within the record. In view of the above, and the fact that there is no evidence to establish unusual or exceptional circumstances beyond what is contemplated by the combined 40 percent disability evaluation, as noted above, we conclude that the evidence of record does not establish that the appellant is incapable of performing the physical and mental acts required by employment. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required pursuant to the provisions of 38 U.S.C.A. § 5107(b) (West 1991). ORDER The appeal 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.