BVA9501131 DOCKET NO. 93-06 459 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased disability evaluation for asthma, rated 10 percent disabling. 2. Entitlement to service connection for status-post low back strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Brynn K. Bloomgren, Associate Counsel INTRODUCTION The appellant had active service from January 1990 to October 1990. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a July 1991 rating decision of the Houston, Texas, Regional Office (hereinafter RO) of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to service connection for lumbar sprain and granted service connection for bronchial asthma, rated 10 percent disabling. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for a lumbar spine disorder on the basis of aggravation. He claims that he re-injured his back during service after heavy lifting. The veteran also contends that an increased evaluation is warranted for service-connected asthma. He asserts that asthma prevents him from performing certain jobs and recreational activities. He states that he needs to carry an inhaler with him for shortness of breath. 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 claims for service connection for status-post low back strain, and for an increased evaluation for asthma. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. Bronchial asthma is mild and is manifested by clear lung fields without wheezes, rales, or rhonchi, full excursion on inspiration and expiration, and no productive cough or dyspnea on exertion, except with exacerbations. Pulmonary studies could not rule out mild obstructive defect, considered to be probable small airway defect. 3. This case does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render inapplicable the regular schedular standards. 4. A low back contusion pre-existed service. There is a history of injury to the lumbar spine as a result of heavy lifting in service, but without any increase in the underlying disability or superimposed pathology shown during service. CONCLUSION OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for asthma are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), Part 4, 4.1, 4.2, 4.10, 4.97, Diagnostic Code 6602 (1993). 2. Status-post low back strain was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303, 3.306 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well- grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Although the veteran's complete service medical records are not of record, we note that the RO made reasonable efforts to retrieve additional documents without success. We are satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. 38 U.S.C.A. § 5107 (West 1991). I. Entitlement to an Increased Evaluation for Asthma Disability evaluations are determined by the application of the schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). Separate diagnostic codes identify the various disabilities. The regulations provide that each disability be viewed in relation to its history. 38 C.F.R. Part 4, § 4.1 (1993). The percentage ratings assigned by the rating schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such a disability, assessed with respect to its detrimental impact on the veteran's ordinary daily activities, as well as employment. 38 C.F.R. § 4.10 (1993). Service medical records show that the veteran was seen in May 1990 with complaints of shortness of breath and a cough over the past 24 hours. He required re-hospitalization following complaints of wheezing and shortness of breath. Studies revealed a right middle lobe infiltrate. The veteran reported a history of episodes of cough and shortness of breath, which he said occurred regularly over the past few years in the spring. He denied any prior history of reactive airway disease. Examination of the lungs showed breath sounds to be equal, bilaterally with diffuse mild expiratory wheeze. The diagnosis at that time was bronchial asthma. The veteran was recommended for discharge as a result of the disability. The veteran was examined by the VA in November 1990 after separation from service. On auscultation, breath sounds were fairly audible with occasional wheezing noted. No moist rales or residuals of pneumonia were noted. The RO granted service connection for bronchial asthma, rated 10 percent disabling, in July 1991. VA outpatient treatment reports dated from September 1991 through January 1992 show that the veteran was seen for wheezing and shortness of breath in September and October 1991. The veteran was afforded VA examination in March 1992. He complained of shortness of breath with exertion and wheezing. He stated that he had to carry an inhaler with him. He reported to the examiner that he had frequent episodes of asthma since 1990, and that he had been hospitalized for asthma three times in the past three years. The veteran indicated that the disorder did not impede his work as a sales representative, although he had occasionally missed work during acute exacerbations. Medications included Azmacort and Proventil inhaler. Upon physical examination, the veteran did not appear to be in respiratory distress. The chest demonstrated full excursion on inspiration and expiration with no use of expiratory muscles or retraction. Auscultation demonstrated clear lung fields throughout with no wheezes, rales, or rhonchi. There was no clubbing, cyanosis, or edema of the extremities. Cor pulmonale was not found. Frequency of attacks was described as mild wheezing. There was no dyspnea with exertion demonstrated during the examination. The veteran reported to the examiner that he did not have dyspnea when there was not a flare-up of asthma. The examiner remarked that, while there was no evidence of infectious disease, he felt that allergic disease was contributing to the asthma. Pulmonary function studies could not rule out mild obstructive ventilatory defect. The opinion was that there was a probable small airway defect. The studies showed a mild decrease in the total lung capacity (tlc) at 5.40 or 70 percent of the predicted value. Forced vital capacity (fvc) was 4.83 or 83 percent predicted. Forced expiratory volume (fev 1) was 3.41 or 74 percent of the predicted value, and fef 25%-75% (forced expiratory over the portion of the tracing from the point where 25% of the forced vital capacity (fvc) has been expelled to the point that 75% of the fvc has been expelled) was 2.43 or 50 percent predicted. The diagnosis was asthma, moderate by history, mild by examination. The veteran's bronchial asthma is evaluated under the Schedule for Rating Disabilities, 38 C.F.R., Part 4, with reference to Diagnostic Code 6602. Thereunder, the veteran's current evaluation of 10 percent contemplates a mild disorder with paroxysms of asthmatic type breathing ( high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks. A 30 percent evaluation is warranted for a moderate disorder characterized by rather frequent asthma attacks separated by only 10-14 days, with moderate dyspnea on exertion between attacks. 38 C.F.R. Part 4, § 4.97 Diagnostic Code 6602 (1993). The most recent clinical evidence shows that bronchial asthma is manifested by clear lung fields without wheezes, rales, or rhonchi, full excursion on inspiration and expiration, and no productive cough or dyspnea on exertion, except with exacerbations. The pulmonary studies provide a fairly detailed picture of the disability and the findings were described as mild by the medical examiner. The veteran told the examiner that the disability does not interfere with his job much except for when he occasionally misses work during acute exacerbations. We appreciate the complaints associated with the veteran's service-connected disability. However, the examiner's opinion was that there was only a mild degree of impairment shown during the examination with occasional exacerbating episodes. These symptoms are contemplated by the 10 percent disability evaluation currently in place. The medical history and examination findings do not show that the veteran's disability picture more closely approximates the criteria for a 30 percent disability with biweekly attacks and moderate dyspnea on exertion between attacks. Accordingly, the claim for an increase must be denied. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), Part 4, 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Code 6602 (1993). In reaching our determination, consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether they were raised by the appellant or not as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The evidence does not suggest that the veteran's disability is so unusual so as to render impractical the application of the regular schedular standards demonstrated, such as by marked absence from employment shown due to the service- connected disability or frequent periods of hospitalization, which would warrant the application of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1993). II. Entitlement to Service Connection for Status-Post Lumbar Strain. Service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by military service. 38 U.S.C.A. § 1110, 1131, 5107 (West 1991). Regulations also provide that service connection may be established where all the evidence of record, including that pertinent to service, demonstrates that the veteran's current disability was incurred in service. 38 C.F.R. § 3.303(d) (1993). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306 (1993). In determining whether service connection is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case service connection must be denied. 38 U.S.C.A. § 5107 (West 1991). Gilbert v. Derwinski, 1 Vet.App. 49 (1990). A clinical resume for Medical Board Proceedings dated in May 1990 indicates that the veteran was seen by the orthopaedic surgery service with reference to a history of low back pain. After a complete clinical and radiographic evaluation, no abnormality was found. A Medical Board Proceeding report, dated in September 1990, notes the history of low back pain without evidence of any pathology upon evaluation. The opinion was that back pain existed prior to entrance and was not aggravated by service. The veteran was examined by the VA after separation from service in November 1990. He reported that, prior to induction, he sustained a low back contusion as a result of a motor vehicle accident. He claimed that x-rays revealed no pathology at that time, but that he was treated with ultrasound, wet heat, and electromuscular stimulation. He said that the back symptoms entirely resolved. The veteran also stated that, during service in January 1990, he reinjured his back performing heavy lifting. He said that there was no pathology shown. The veteran described having radiating pain to his right leg at that time. He told the examiner that after physiotherapy and manipulation of the spine, his symptoms entirely resolved without recurrence since that time. Physical examination revealed normal curvatures except for a certain degree of obliteration of lumbar lordosis. There was no pain on percussion or deep palpitation. Lasegue was negative, bilaterally. There was no evidence of atrophy. Tiptoe and heel walking were normal, as well as, walking on the side of the feet. Range of motion of the spine was entirely within normal limits without evidence of muscle spasm or pain. The diagnosis was status-post lumbar sprain without residual disability. A VA outpatient treatment report, dated in September 1991, shows that the veteran reported a history of back complaints. He told the examiner that he had had no problem with his back until May 1991, but that he had since had occasional exacerbations. He disclosed that he used Flexeril and rest, and that his symptoms were resolving. Examination showed normal range of motion without muscle spasms or tenderness. Range of motion was intact. The diagnosis was recurrent back pain, not current. By VA examination report dated in March 1992, the veteran reported the history of injury to his back prior to service in a motor vehicle accident. He said that he had not had radiating back pain at that time. He claimed that he had been treated for a "bad sprain" with resolution of the problem after four months of treatment. The veteran said that in 1989 he had had another fall, resulting in radiating pain to his left leg. He told the examiner that no x-rays had been taken and he was given Motrin. He said that two months later he was examined and that there was resolution of his symptoms after manipulations and further physiotherapy. He claimed that he had had mild recurrences of low back pain only, mostly after lifting or overexerting himself, occurring twice a month and controlled by Motrin after a period of 12 to 48 hours. Physical examination of the back revealed normally preserved curvatures. There was no percussion pain over the lumbosacral segment, no pain on deep palpitation of the sacroiliac or gluteal areas. There was no pain over the paraspinal musculature. Lasegue was negative, bilaterally. There was no evidence of atrophy. Reflexes were present, normal, and equal at 3+, bilaterally. Tiptoe and heel walking were entirely normal. The range of motion was found to be practically normal, except for a degree or two at the most, with pain barely elicited in any motion. X-rays showed a small area of increased density was seen over the left iliac wing, considered to most likely represent a bone island. Radiologic examination was found to be otherwise normal. The diagnosis was status-post low back strain. The record contains several references to the history of previous trauma to the low back. The veteran has indicated that this resulted in treatment for strain or contusion of the low back. Therefore, the remaining issue is whether the pre-existing back disorder was aggravated during service, or whether there was some superimposed disability during service. The record reflects a history of trauma to the spine during service after a fall in 1989 or 1990 without residual disability found. The veteran's post service statements during medical examination and treatment confirm that his initial symptoms after the fall in service resolved after a short period of treatment. The veteran admitted that he did not have problems until more recently in May 1991. This is supported by the lack of findings in the first VA examination report. The most recent examination shows only minor abnormalities, and the diagnosis provided is somewhat vague as to whether there is any current disability shown. Even if we are willing to concede the presence of a current back disorder, however, the preponderance of the evidence goes against a finding that the current symptoms are the result of aggravation of a pre-service disability or due to a superimposed disability due to additional trauma. Not only does the record contain the expert opinion of the Medical Board that there was no aggravation or chronic back disorder in service, the veteran admitted that he really had no problems until after service in 1991. On the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service, we find that the pre-existing back disorder was not aggravated beyond natural progression, and, furthermore, that the record does not show any superimposed disability or relationship between the current complaints and service. Accordingly, service connection must be denied. ORDER 1. Entitlement to a disability evaluation for asthma in excess of 10 percent is denied. 2. Entitlement to service connection for status-post low back strain is denied. JACK W. BLASINGAME 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. (CONTINUED ON NEXT PAGE) 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.