BVA9505138 DOCKET NO. 93-11 667 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for bronchial asthma with right lower lobe lobectomy, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from November 1954 to November 1957. This matter came before the Board of Veteran's appeals on appeal from a decision of January 1992 by the Department of Veterans Affairs (VA) Waco, Texas, Regional Office (RO). The decision confirmed a 30 percent rating for bronchial asthma with right lower lobe lobectomy. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO made a mistake by failing to assign a rating higher than 30 percent for his bronchial asthma with right lower lobe lobectomy. He asserts that as a result of the disorder he can hardly perform any manual labor without causing a severe asthma attack. He asserts that medication provides little relief. He also contends that he had to retire from teaching as a result of the impairment due to his asthma. 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 claim for an increased rating for bronchial asthma with right lower lobe lobectomy. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The bronchial asthma with right lower lobe lobectomy is not more than moderate in degree, with rather frequent asthma attacks and moderate dyspnea on exertion between attacks. CONCLUSION OF LAW The criteria for a disability rating higher than 30 percent for bronchial asthma with right lower lobe lobectomy are not met. 38 U.S.C.A. § § 1155, 5107 (West 1991); 38 C.F.R. § 4.97, Diagnostic Code 6602 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has found that the veteran's claim for an increased rating is "well-grounded" within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the claim is not inherently implausible. The Board is also satisfied that all relevant facts have been properly developed. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained. The veteran has been afforded a disability evaluation examination, and his recent medical treatment records have been obtained. The veteran has declined the opportunity to have a hearing. The Board does not know of any additional relevant evidence which is available. Therefore, no further assistance to the veteran with the development of evidence is required. The Board has considered the full history of the veteran's bronchial asthma. The veteran's service medical records show that he was hospitalized on numerous occasions during service for treatment of asthma. For example, a service hospital admission record dated in April 1956 shows that the veteran was admitted with a chief complaint of having asthma since the age of 12 with bad attacks of asthma in the few days prior to admission. Examination revealed that the veteran was having a typical asthmatic attack with markedly prolonged expirations using accessory muscles. The diagnosis was asthma. Other service hospital records contain similar information. A report of medical examination conducted in September 1957 for the purpose of the veteran's discharge, however, shows that clinical evaluation of the veteran's lungs was normal. In December 1957, the veteran filed a claim for disability compensation for disorders including asthma. In connection with his claim, the veteran was afforded a disability evaluation examination by the VA in January 1958. The report shows that the asthma was not found on examination. Subsequently, in a rating decision of January 1958, the RO denied the veteran's claim for service connection for asthma. In July 1973, the veteran submitted another application for disability compensation for asthma. The veteran was afforded a disability evaluation examination by the VA in October 1973. The examination report shows that the diagnoses included asthmatic bronchitis, mild to moderate, when spasm increases. Subsequently, in a rating decision of November 1973, the RO granted service connection for bronchial asthma, and assigned a 10 percent rating for the disorder. The 10 percent rating was subsequently confirmed on several occasions. In June 1990, the veteran requested an increased rating. The evidence obtained at that time included a medical record dated in April 1990 which shows that the veteran had asthma most of his life, but had relatively little trouble except for respiratory infections. It was noted that he had smoked for twenty years, but had recently quit. He stated that he became short of breath only with very strenuous exercise. Since starting on a beta blocker he had more difficulty with the asthma. He recently had been told that a chest X-ray was abnormal. Other medical records dated in March, April and May 1990 show that the veteran underwent a right lower lobe lobectomy for removal of a soft tissue mass in the posterior basal segment of the right lower lobe. The mass did not turn out to be cancerous. A letter dated in June 1990 from Maurice Adam, M.D., shows that the veteran had an uneventful postoperative course, was healing nicely, and was encouraged to swim or walk for exercise. In a rating decision of September 1990, the RO assigned a temporary total disability rating for bronchial asthma with right lower lobe lobectomy to allow a period of convalescence. The veteran was afforded a disability evaluation examination by the VA in December 1990. The report of that examination shows that the veteran did not complain of recent asthma symptoms. Examination revealed that the lungs were clear to auscultation and there were no rales, although breath sounds were somewhat decreased over the right lower chest posteriorly. The diagnoses included bronchial asthma, chronic, mild, postoperative status right lower lobectomy May 16, 1990, for mucoid impaction. The veteran reportedly continued to complain of post incisional pain and did have moderate tenderness over the right lateral chest wall. Subsequently, in a rating decision of February 1991, the RO increased the rating for the bronchial asthma with right lower lobe lobectomy from 10 percent to 30 percent. In November 1991, the veteran requested an increased rating for his asthma. He stated in his request that he had been receiving treatment at the Dallas VAMC. The RO denied that request, and the veteran perfected this appeal. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Under Diagnostic Code 6602, a 30 percent rating is warranted for asthma which is moderate in degree, with rather frequent asthma attacks (separated by only 10 to 14 day intervals) and moderate dyspnea on exertion between attacks. A 60 percent rating is warranted if the disorder is severe in degree with frequent attacks of asthma (one or more attacks weekly), marked dyspnea on exertion between attacks, and more than light manual labor is precluded. The evidence which has been obtained in connection with the veteran's claim for an increased rating includes a VA hospital discharge summary from the Dallas VAMC dated in October 1991. However, that hospital record shows that the veteran was hospitalized not for his service-connected asthma, but for treatment of nonservice-connected disorders such as (1) paroxysmal atrial fibrillation, (2) spinal stenosis, (3) a recurrent urinary tract infection, and (4) hypertension. Although the summary shows that the veteran's symptoms included shortness of breath, this was associated with his heart disorder rather than with his asthma. Physical examination during the hospitalization revealed that the chest was normal and was clear bilaterally. Recent VA outpatient treatment records also pertain primarily to nonservice-connected disorders. An outpatient treatment record dated in August 1991 shows that the veteran reported having shortness of breath and weakness. It was noted that he had a history of having an irregular heart beat. Examination revealed his chest was clear. The diagnosis was rule out arrhythmia. He was referred for follow up with cardiology. The Board notes that asthma was not diagnosed. A VA record dated September 15, 1991 shows that the veteran stated that at night he experienced palpitations which were associated with a slight shortness of breath. Examination revealed that the veteran's lungs were clear with no rales or wheezes. A VA radiology report dated in September 1991 shows that a chest X-ray revealed the old surgery on the right lung, but otherwise the lungs were clear. A VA outpatient record dated in December 1992 shows that the veteran was treated for bronchitis of two weeks duration; however, asthma was not mentioned. The Board notes that dyspnea may result from many causes, some service-connected, others not. Manifestations associated with a nonservice-connected disorder, such as the veteran's cardiac disorder, may not be considered as a basis for assigning an increased rating for a service-connected disorder. See 38 C.F.R. § 4.14 (1994). In this case the evidence shows that the veteran's shortness of breath is associated with nonservice- connected disorders and, therefore, cannot provide a basis for an increased rating for the service-connected bronchial asthma. The medical evidence which actually pertains to the veteran's service-connected asthma does not show severe impairment. For example, a letter dated in March 1992 from Andrew B. Burke, D.O., a private physician, shows that he only treated the veteran for asthma six times between 10/3/88 and 10/25/91. A letter dated in June 1992 from George S. Schools, M.D., a private physician with a practice in pulmonary medicine, contains the following information: I have followed [the veteran] with asthma since April 1990. He was last seen on 6/10/92. At that time he was having mild wheezing although he felt relatively clear. Physical examination revealed nasal congestion, mild wheezes throughout both lungs and evidence of gait disturbance from his recently diagnosed spinal stenosis. Pulmonary Spirometry confirmed a chronic obstructive defect with slight improvement after bronchodilator showing FVC of 3.37 or 73% of predicted 4.62, FEV1 of 2.31 or 70% of predicted 3.29 improving to 2.55 or 78% of predicted for overall improvement of approximately 10 %. I have intensified his treatment program. There is no question that [the veteran] now has chronic asthma rarely, if ever, being completely clear and with frequent acute exacerbations. A letter dated in June 1993 from Dr. Schools contains similar information. The Board notes that these letters do not contain information showing that the asthma is severe in degree. The physician described the veteran's wheezing as being mild. Although the physician reported that the veteran had frequent exacerbations, no specific information regarding the severity or frequency of the exacerbations was given. A report of a disability evaluation examination conducted by the VA in October 1992 shows physical examination revealed the veteran was a well developed, obese man who was short of breath on walking short distances in the hall and on bending over and on getting dressed. Examination of the head, eyes, ears, nose, throat, fundi, neck, chest and lungs did not reveal any abnormality. There was a well healed right side thoracotomy scar. The impression included history of bronchial asthma not in evidence at this particular time [emphasis added], but moderately severe by history- please [see] pulmonary function tests and chest X-ray. A report of a chest X-ray which was taken in connection with the disability evaluation examination shows that the X-ray was interpreted as revealing (1) a stable appearance of the chest; (2) Right lower lobe resection; (3) No evidence of acute pleural or parenchymal disease; and (4) Heart size within normal limits. A report of a respiratory function test conducted as part of the disability evaluation examination shows that the results were interpreted as revealing a restrictive pattern with mild [emphasis added] impairment and no significant bronchodilator response. In summary, the veteran's current medical problems pertain primarily to nonservice connected disorders which may not be considered. The evidence shows that the bronchial asthma with right lower lobe lobectomy is not more than moderate in degree, with rather frequent asthma attacks and moderate dyspnea on exertion between attacks. Accordingly, the schedular criteria for a disability rating higher than 30 percent for bronchial asthma with right lower lobe lobectomy are not met. The Board also finds that a rating higher than 30 percent is not warranted on an extra-schedular basis. Under 38 C.F.R. § 3.321(b) (1994), an extra-schedular rating may be assigned in exceptional cases where the schedular evaluations are found to be inadequate, such as where the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. The veteran's bronchial asthma does not present such an unusual or exceptional disability picture. The only recent hospitalization which was connected with the veteran's bronchial asthma was the one in early 1991 when he underwent the right lower lobe lobectomy. One hospitalization is not sufficient to warrant a finding of frequent hospitalizations. The Board also notes that, although the veteran has suggested that he had to retire due to his asthma, he has not presented any evidence to support that contention. Therefore, the Board finds that marked interference with employment has not been shown. Accordingly, a rating higher than 30 percent may not be assigned on an extra-schedular basis. ORDER An increased rating for bronchial asthma with right lower lobe lobectomy is denied. WARREN W. RICE, JR. 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.