BVA9507701 DOCKET NO. 93-14 045 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased evaluation for adhesions of pleura with emphysema, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Julia M. Kurtz, Associate Counsel INTRODUCTION The veteran served on active duty from January 1954 to January 1957. This appeal arises from a December 1992 rating decision of the Houston, Texas, Regional Office (hereinafter RO) which denied an increased evaluation for adhesions of pleural with emphysema. The veteran is represented in his appeal by The American Legion. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that manifestations of his service-connected lung disorder are more severe than currently evaluated. He contends that, at the VA examination in November 1992, he actually told the examiner that he can only walk 200 yards at a normal pace before stopping to catch his breath. He also asserts that The Merck Manual indicates that his vital capacity (VC) measurement equate to severe impairment for chronic obstructive disease and borderline moderate restrictive disease, that his maximal voluntary ventilation (MVV) measurement equates to a severe restrictive disease and borderline moderate chronic obstructive disease, and that his forced expiratory volume in 1 second as percent of forced vital capacity (FEV1/%VC) measurement equates to a severe restrictive impairment. 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 veteran's claim for entitlement to an increased evaluation for adhesions of the pleura with emphysema. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The current medical findings regarding the veteran's service- connected lung disorder show no rales, rhonchi, or wheezes, mild obstruction to airflow based on pulmonary function study, and complaints of shortness of breath. 3. The case does not present an exceptional or unusual disability picture so as to render impractical the regular schedular criteria. CONCLUSION OF LAW Residuals of adhesions of pleura with emphysema are no more than 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4, § 4.7, Diagnostic Codes 6603, 6810 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim 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. With respect to the veteran's claim of entitlement to an increased rating for his lung disability, the Board points out that disability ratings are based, as far as practicable, upon the average impairment of earning resulting from the disability. 38 U.S.C.A. § 1155. The average impairment is set forth in the VA's Schedule for Rating Disabilities (Schedule), codified in C.F.R. Part 4 (1994). The pertinent diagnostic codes and provisions will be discussed below as appropriate. The veteran's service medical records reveal that adhesions of pleura was diagnosed in November 1956. Based on the evidence of record, the RO granted service connection for adhesions of pleura in January 1972 and assigned a noncompensable evaluation. At a VA examination in January 1973, the veteran stated that he smokes and that, on unusual exertion, he has bright red blood from his mouth. Pulmonary function studies were normal. A chest x-ray was interpreted as showing minimal blunting of the right costophrenic angle, possible secondary to old diaphragmatic pleural adhesions. Upon physical examination, there were diminished breath sounds in the right lower lobe. No other abnormal findings were noted. The diagnosis was active lung disease, not found, and old diaphragmatic pleural adhesion, right base, minimal. When examined in November 1973, pulmonary function tests were again normal; the diagnosis was diaphragmatic pleural adhesions (by X-ray). In August 1975, the veteran was hospitalized for a chest work-up because of recurrent hemoptysis. He gave a history of spitting a little blood for one or two days when he does heavy work. Physical examination revealed slightly decreased motion, percussion and breath sound on the right. X-ray study showed obliteration of the right costophrenic angle on the basis of old pleurisy. A bronchoscopy showed some edema of the larynx, enlarged tonsils, and some bleeding on the radix of the tongue on touch. Pulmonary function studies showed moderate restriction and slight obstruction. The pertinent diagnosis was adhesive pleuritis, right, with hemoptysis. Based upon the evidence, in August 1976, the RO effectuated a Board decision dated July 1976 which assigned a 10 percent evaluation for adhesions of pleura, effective from October 18, 1975. A medical statement from Larry R. Taylor, M.D., dated in January 1978, indicated that a chest x-ray dated in November 1977 showed no evidence of active disease and the blunted right costophrenic angle of the right hemi-diaphragm was slightly elevated. In December 1978, the veteran submitted a medical statement dated November 1978 from Jim O. Bauer, M.D., who stated that he had referred to a pleuritic type reaction in the right posterior chest, that there was no primary lung disease noted, and that there was no evidence that the veteran had or had ever had tuberculosis by chest x-ray criteria. A Board decision dated in March 1979 confirmed the 10 percent evaluation assigned to adhesions of pleura. A VA outpatient treatment note dated in June 1992 noted no rales, rhonchi or wheezes, and decreased breath sounds. There was no edema of the extremities. The assessment was probable chronic obstructive pulmonary disease. Interpretation of a pulmonary function study dated in July 1992 was mixed obstructive and restrictive impairment, no definite response to bronchodilator, spirometry reveals mild obstruction to airflow, obstructive disease confirmed by increased residuals volume, no change after bronchodilator. At a VA examination in November 1992, the veteran complained of progressive difficulty breathing which occurs only with exercise. He stated that if he walks slowly, he can walk one mile; however, if he attempts to walk at a fast pace, he breathes very rapidly. He stated that he can climb one flight of stairs but is short of breath at the top. He gave a 40 pack a year smoking history. He denied a chronic cough. Objective findings upon examination included diminished breath sounds at the right base and a few coarse rales noted at the left base. Chest X-ray revealed blunting of the right costophrenic angle consistent with pleural effusion. The diagnosis was probable chronic obstructive pulmonary disease with a restrictive component, the etiology of which was unclear. It appears that the progression of his symptoms is related to chronic obstructive pulmonary disease and his continued smoking. In December 1992, the RO reclassified the veteran's lung disorder as adhesions of pleura with emphysema and continued the 10 percent evaluation. The veteran's adhesions of pleura are evaluated under Diagnostic Code 6810. This code provides that for chronic pleurisy, fibrous, following lobar pneumonia and other acute disease of the lungs or pleural cavity, without empyema, is considered a nondisabling condition, except with diaphragmatic pleurisy, pain in chest, obliteration of costophrenic angles, and tenting of diaphragm. The veteran's 10 percent evaluation is the highest evaluation possible under this code. However, the veteran's service-connected respiratory disorder includes consideration of emphysema. Under Diagnostic Code 6603, a 60 percent evaluation is warranted for severe pulmonary emphysema reflected by exertional dyspnea sufficient to prevent climbing one flight of steps 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 rating 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. A 10 percent rating is provided for mild pulmonary emphysema with evidence of ventilatory impairment on pulmonary function tests and/or definite dyspnea on prolonged exertion. Where there is a question as to which of two evaluations shall 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 (1994). The veteran has referred to the Merck Manual. Since he has referred to the Merck Manual, the Board's referencing of the work does not violate the veteran's due process or violate Thurber v. Brown, 5 Vet.App. 119 (1993). The veteran has had every opportunity to plead his case and has taken advantage of that opportunity by referencing the Merck Manual. The specter of a violation of due process because evidence is obtained by the Board does not exist when the veteran has provided the evidence himself. The Board has merely reviewed the same evidence reviewed by the veteran. In this regard, the Board notes that the Merck Manual is not regulatory or binding on VA. Regardless, the charts referred to by the veteran do not support the claim. Many of the results referenced by the veteran support a finding of no restrictive or obstructive disease or mild obstructive or restrictive disease. Under such circumstances, the Board shall rely on the actual findings and complaints noted in the reports, rather than generalized guidelines that may be subject to multiple interpretations. In addition, as a layman, the veteran is not competent to interpret medical findings. Upon review of the evidence, the Board concludes that the preponderance of the evidence is against the veteran's claim for an evaluation in excess of 10 percent for adhesions of pleura with emphysema. As noted above, although the veteran complains of shortness of breath after walking one flight of stairs or walking more than 200 yards, his lungs have not revealed rales, rhonchi, or wheezes. Additionally, the Board notes the veteran's contentions that his individual pulmonary function tests results equate with a more severe impairment. However, the overall interpretation of his latest pulmonary function test was mild obstruction to airflow. Moreover, the veteran has stated that he can walk 200 yards before stopping to catch his breath, which is considerably more than one block. The Board has not been presented with evidence of moderate dyspnea after one climbing flight of steps. In addition, competent interpretation of moderation impairment of pulmonary function has not been entered. The veteran's service-connected lung disorder more nearly approximates the criteria for a 10 percent evaluation under Diagnostic Code 6603. Accordingly, an increased evaluation is not warranted for adhesions of pleura with emphysema. The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) (1994) regarding the assignment of an extraschedular evaluation for the veteran's respiratory disorder, however, it is not found that this provision is applicable because the veteran's lung disorder 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 regular rating standards. ORDER An increased evaluation for adhesions of pleura with emphysema is denied. H. N. SCHWARTZ 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.