Citation Nr: 0003748 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 94-30 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to an increased rating for service-connected moderate restrictive lung defect with mild flow limitation, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from April 1989 to December 1992. These matters came to the Board of Veterans' Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In March 1994, the RO denied the claim of service connection for a right shoulder injury, and the veteran filed a notice of disagreement. A statement of the case was issued that July. The veteran filed his substantive appeal in August 1994. In May 1996, the RO denied the veteran's claim for an increased rating for service-connected asthma and service connection for muscle and joint pain, and the veteran filed a notice of disagreement. A statement of the case was issued in June 1996. A substantive appeal was submitted in December 1996. In a May 1998 decision, the RO granted the claim of entitlement to service connection for generalized joint and muscle pain, fatigue, muscle contraction headaches, sleep problems and memory impairment due to undiagnosed illness. Appellate action regarding this decision has not been initiated, therefore the Board no longer has jurisdiction over the issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDINGS OF FACT 1. There is no competent evidence of record which establishes a nexus between injuries to the right shoulder during service, and any current right shoulder disability for which service connection has not already been granted. 2. The veteran's service-connected moderate restrictive lung defect with mild flow limitation is manifested by nightly symptoms, dry cough, wheezing, some dyspnea on exertion, some chest tightness, and the daily use of inhalers. 3. The service-connected lung disability does not require 3 or more courses of systemic corticosteroids yearly, or monthly physician's visits for exacerbations; pulmonary function tests do not show FEV-1 or FEV-1/FVC of 55 percent or less. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim of service connection for a right shoulder disability due to an injury. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for an evaluation of 30 percent for service- connected moderate restrictive lung defect with mild flow limitation have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.103, 4.7; 38 C.F.R. § 4.97, Diagnostic Code 6602 (effective prior to September 5, 1996); 38 C.F.R. § 4.97, Diagnostic Code 6602 (effective September 5, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to Service Connection for a Right Shoulder Disability due to Injury A claimant for benefits under a law administered by the Secretary of the Department of Veterans Affairs shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Thus, the threshold question is whether the veteran has presented evidence of a well-grounded claim under 38 U.S.C.A. § 5107(a) for service connection for a right shoulder disability due to an injury. There must be more than a mere allegation; a claimant must submit evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990), Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). If he has not, his appeal must fail and there is no duty to assist him in the development of facts pertinent to that claim. 38 U.S.C.A. § 5107(a) (West 1991). For a claim of service connection to be well-grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet. App. 498 (1995). As explained below, the Board finds that the veteran's claim is not well grounded. Presuming the truthfulness of the evidence for the purpose of determining whether this claim is well grounded, the Board notes that the record on appeal includes the service and post-service records, as well as VA examination reports. In this case, the first and third requirements for a well- grounded claim have not been met. The VA treatment records reflect the veteran's complaints of right shoulder pain, as well as diagnoses of probable bursitis, fibromyalgia, and polyarthralgia. Records show that in February 1994, it was noted that there was a history of degenerative joint disease, but entries from December 1993 and May 1994 reflect the conclusion that there was no evidence of degenerative joint disease. Also, in December 1993, the examiner noted that there was no evidence of an AC separation. On a VA examination of January 1995, the examiner found that there was crepitus, decreased abduction, extension and internal and external rotation with pain, but a specific diagnosis was not made. When examined in December 1995, it was noted that he had a syndrome consistent with a mixture of osteoarthritis and fibromyalgia with the latter being predominant. However, on a VA neurological disorders examination in March 1998, the examiner found tender points palpated at the right trapezius and indicated that the diagnostic criteria for fibromyalgia had not been met. The examiner reported a diagnosis of undiagnosed illness fatigue. In this case, the only diagnoses of a current right shoulder disability that could be considered would be polyarthralgia and undiagnosed illness fatigue. As noted, several VA record entries confirm that there were no findings of degenerative joint disease, despite the history of the condition mentioned in the February 1994 VA treatment record entries. Bursitis was considered "probable", therefore a definite diagnosis of the condition was not made. Also, an AC joint separation has not been shown. With respect to undiagnosed illness fatigue and polyarthralgia, service connection has been granted for these conditions since the RO granted the claim of entitlement to service connection for generalized joint and muscle pain, fatigue, muscle contraction headaches, sleep problems and memory impairment due to undiagnosed illness in May 1998. That decision included a discussion of the right shoulder as one of the joints affected by the disability. There is no current diagnosis of any right shoulder disability for which service connection has not been granted. Regarding the second requirement for a well-grounded claim, the Board notes that the evidence indicates that the veteran injured the right shoulder during service. The service medical records document several occasions when the veteran made right shoulder complaints. In August 1990, the veteran reported that he injured the shoulder during a softball game. The x-rays revealed normal acromioclavicular and he was diagnosed with AC joint sprain. In February 1992, he complained of right shoulder pain and feelings resembling dislocation. He was diagnosed with trapezius supraspinatus sprain. Further mention of a right shoulder condition was not noted in the August 1992 discharge examination and medical history reports. In this case, the veteran has stated that he hurt his right shoulder at the same time he sustained an injury to the low back during service. Normally, where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including the veteran's solitary testimony may constitute sufficient evidence. Grottveit v. Brown, 5 Vet. App. 91 (1993). Although the right shoulder was not referred to in the service medical records related to the treatment of a low back injury, the veteran's recollections are sufficient to show that he also hurt the right shoulder at that time. However, the evidence in this case is further lacking with regard to demonstrating that any current problem with the right shoulder is related to the injuries that occurred during service. The United States Court of Appeals for Veterans Claims (Court) has held that where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to render a medical opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Here, the evidence of record is void of medical opinions which relate any current right shoulder condition to in-service injuries to the right shoulder. The only evidence which links an injury to a current condition consists of the veteran's statements. However, the assertions of a lay party on matters of medical causation of a disease or disability are not sufficient to make a claim well grounded. Moray v. Brown, 5 Vet. App. 211 (1993). Therefore, the veteran's assertions do not constitute competent medical evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). Consequently, the veteran has not met the initial burden under 38 U.S.C.A. § 5107(a) (West 1991) as the lay evidence submitted does not cross the threshold of mere allegation. Thus, the claim is not well grounded, and the Board does not have jurisdiction to adjudicate it. Boeck v. Brown, 6 Vet. App. 14 (1993). Accordingly, the veteran cannot invoke the VA's duty to assist in the development of the claim under 38 U.S.C.A. § 5107(a) (West 1991). Grivois v. Brown, 6 Vet. App. 136 (1994). There is no prejudice to the appellant in denying the claim as not well-grounded even though the RO decision was on the merits, because the "quality of evidence he would need to well ground his claim or to reopen it would seem to be...nearly the same..." Edenfield v. Brown, 8 Vet. App. 384 (1995)(en banc). Compare Bernard v. Brown, 4 Vet. App. 384 (1993). To obtain further consideration of the matters on appeal before the Board, the veteran may file a claim supported by medical evidence connecting a current right shoulder condition to an injury incurred during service. Entitlement to an Increased Evaluation for Service-Connected Moderate Restrictive Lung Defect with Mild Flow Limitation Factual Background The records show that the veteran suffered from an acute asthma attack in December 1992. He was discharged to home and given a prescription for an inhaler. He was instructed to follow-up with a physician. In connection with his claim, a VA examination was conducted in February 1993. The veteran reported that since his asthma attack in 1992, he had experienced several episodes and treated himself with inhalers. He also indicated that he tried to avoid dusty conditions. An examination of the respiratory system was negative for clubbing and cyanosis. The lungs were clear to percussion and auscultation. X-rays revealed a normal chest. Pulmonary function tests demonstrated effort adequate by MVV oritoria and by flow- volume loop. There was mild flow limitation with the FEV 1% being 75%. VC and TLC were moderately reduced as well as RV. The examiner noted an impression of moderate restrictive lung defect with mild flow limitation. In an April 1993 decision, the RO granted the claim of service connection for moderate restrictive lung defect with mild flow limitation. A 10 percent rating was assigned. A VA examination was conducted in January 1995, and at that time, the veteran reported that he had frequent asthma attacks and that he had one that morning. He reported that they occur on a daily basis. He uses two inhalers, Albuterol and Cortisone. On examination, the lungs were clear and the chest x-ray was normal. Non-VA treatment records show that the veteran was seen in February 1995 for exacerbation of his asthma. It was noted that the veteran used Azmacort and Ventolin. The veteran reported that he usually can obtain relief after two puffs, but could not at this time after four puffs of Ventolin. He noted that he had been nervous and anxious since his diagnosis. On examination, breath sounds were clear to auscultation. He was placed on a Prednisone taper for five days. The physician explained to the veteran the importance of using Azmacort on a regular basis, particularly two puffs four times a day and to use a metered dose of Ventolin metered as occasion requires. In March 1995, following his completion of the Prednisone taper, he had been taking two puffs of Azmacort four times a day and used Ventolin as occasion required. He noted that he used the Ventolin metered dose inhaler treatment with a spacer, but was unable to get any relief that day. He complained of shortness of breath but did not have any chest pain or associated problems. On examination, chest was clear to auscultation without rales, rhonchi or wheezes. The physician noted that the veteran was instructed on the use of a peak flow meter which, without nebulizing treatment given to him that night, was 575 liters per minute. He was instructed on the use of a peak flow meter and advised to continue using his Azmacort as he did in the past and to continue using Ventolin as occasion requires. He was to follow-up with a VA physician. The veteran reported that pulmonary function tests performed by VA revealed a 40 percent decrease in lung function. The veteran was instructed on the use of a peak flow meter, which would help him guide his anxiety related to asthma as well as the severity of his asthma. He was told that if the flow level goes below 250, he was to return to the emergency room immediately. If they were in the range of 500 and above, he should be confident that he is doing well. Also, it would mean that he did not need to be seen and should only return if he experiences ongoing shortness of breath and no response to inhalers. VA records reflect the treatment of upper respiratory infections in December 1995 and April 1996. When seen in July 1994, it was noted that his asthma was not symptomatic. He had experienced some chest tightness and cough, as well as wheezing with increased physical activity. He uses Albuterol three to four times a day. When seen in February 1995, it was noted that his asthma was stable. In February 1997, it was noted that the veteran continued to experience coughing in the morning with wheezing. He sleeps on the floor on an 8 inch thick piece of plywood. It was noted that his asthma appeared to be stable. In September 1997, it was noted that the veteran's asthma was stable. He had been wheezing, and uses inhalers. A VA examination was conducted in February 1997. The veteran reported that his current symptomatology included waking up in the middle of the night with dry cough, occasional wheezing, and tightness of the chest. He walks around for a few minutes and takes a Proventil inhaler which usually resolves the symptoms. This happens on a regular basis. He did not give a history of shortness of breath, but he does have some dyspnea on exertion if he rapidly goes up a flight or two of stairs. On examination, the lungs were clear to percussion. Lung fields were clear to auscultation, bilaterally on normal inspiration and expiration. The examiner did notice a faint wheezing on forced expiratory maneuver. The pulmonary function test revealed the following: FEV-1 of 3.51, which is 77% of predicted and FVC of 4.42, which is 80% of predicted with an FEV-1, FVC 79%; slow vital capacity was 79%; and midflows were decreased across the board. A postbronchodilator study was done. A carboxyhemoglobin was obtained, and showed elevated at 5.3 and highly indicative of the veteran's usage of tobacco products. The examiner reported an impression of asthma by history, examination and symptomatology. The examiner opined that a present, the condition was mild and classifiable at Stage II mainly because of the veteran's nightly symptoms. The examiner commented that they could be exacerbated by the veteran's gastroesophageal reflux disease and by suspected continued tobacco use. For control of the asthma, the veteran was started on two puffs of Flovent twice daily and two puffs of Serevent twice daily to see if the nighttime symptoms could be controlled. He was instructed to avoid dusty conditions as well as tobacco smoke which appeared to trigger him. He was also advised to adhere to his treatment for his gastroesophageal reflux. In an addendum, the examiner noted that IgE was up at 148, which suggests an allergy component. At the time of a VA examination in March 1998, it was noted that the lungs were clear to auscultation and percussion bilaterally. Legal Analysis The Board finds that the veteran's claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Court has held that, when a veteran claims that a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed and that VA has fulfilled its duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 3.103(a). Disability evaluations are based upon the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 1991). 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 (1999). Consideration is to be given to all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a review the recorded history of a disability should be conducted in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). This decision will include a review of the entire record, but the focus will be on the most recent medical findings regarding the service-connected disability at issue. Service connection is currently in effect for moderate restrictive lung defect with mild flow limitation, rated 10 percent disabling under the provisions of 38 C.F.R. Part 4, Diagnostic Code 6602 (1999). Diagnostic Code 6602 contemplates asthma. Since the initiation of the appeal, the regulations for evaluation of respiratory disorders were revised as of October 7, 1996. 61 Fed. Reg. 46720-46731 (Sept. 5, 1996). The Court has stated that where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provides otherwise. Karnas v. Derwinski, 1 Vet. App. 308 (1990). Here, either the recently amended or previous rating criteria may be the version most favorable to the veteran. Therefore, the most favorable criteria will be applied, and in this case it is the new criteria. The Court has further stated that when the Board addresses in its decision a question that was not addressed by the RO, the Board must consider the question of adequate notice of the Board's action and an opportunity to submit additional evidence and argument. If not, it must be considered whether the veteran has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). In addition, if the Board determines that the claimant has been prejudiced by a deficiency in the statement of the case, the Board should remand the case to the RO pursuant to 38 C.F.R. § 19.9, specifying the action to be taken. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The most recent supplemental statement of the case was issued in May 1998, and includes a recitation of the new rating criteria. Therefore, the veteran has been informed of the new criteria and their application. Under the prior version of Diagnostic Code 6602, a 10 percent rating is assigned for 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. A 30 percent rating is assigned for moderate bronchial asthma, characterized by asthmatic attacks rather frequent (separated only by 10-14 day intervals) with moderate dyspnea on exertion between attacks. In a notation following this Diagnostic Code, it is indicated that in the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. It is clear that the veteran's asthma presents ongoing symptoms including wheezing and nightly symptoms, as well as the need to use inhalers on a regular basis. However, the treatment records indicate that there was an exacerbation of the condition in 1995 and the records dated after this exacerbation show that his asthma was stable. Therefore, there has not been a showing of frequent asthmatic attacks separated by 10-14 day intervals with moderate dyspnea on exertion between attacks, as required for a 30 percent rating under the old criteria, and there is not a question as to which evaluation should apply. 38 C.F.R. § 4.7 (1999). Under the current version of Diagnostic Code 6602, a 10 percent rating is warranted for FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is assigned for FEV-1 of 40- to 55-percent predicted, or; FEV- 1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. As in the old version, in the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record. In this case, the evidence of record establishes that the veteran uses an inhaler on a daily basis to control his asthma, as required for a 30 percent rating under the new version of Diagnostic Code 6602. However, given the criteria for a 60 percent rating, an evaluation greater than 30 percent would not be warranted. The pulmonary function test results noted throughout the record clearly do not meet those required for a 60 percent rating. The notations in the treatment records indicate that regular visits are necessary to control the condition, but they do not appear to be of the frequency required for a 60 percent rating. Also, they do not appear to involve intermittent courses of systemic corticosteroids. Therefore, there is not a question as to which evaluation should apply since the disability picture here resembles that which is contemplated by the new criteria for a 30 percent rating under Diagnostic Code 6602. 38 C.F.R. § 4.7 (1999). The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After a careful review of the available Diagnostic Codes and the medical evidence of record, the Board finds that Diagnostic Codes other than 6602, do not provide a basis to assign an evaluation higher than the 30 percent rating assigned by this decision. Here, the preponderance of the evidence favors the veteran's claim to the extent that a 30 percent rating is warranted. Therefore, the application of the benefit of the doubt doctrine contemplated by 38 U.S.C.A. § 5107 (West 1991) is inappropriate in this case. ORDER The claim of entitlement to service connection for a right shoulder disability due to an injury is not well grounded, and the appeal is denied. Entitlement to a 30 percent rating for moderate restrictive lung defect with mild flow limitation has been established, and the appeal is granted subject to regulations applicable to the payment of monetary benefits. J. E. Day Member, Board of Veterans' Appeals