BVA9502013 DOCKET NO. 92-52 954 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for bronchial asthma with functional vocal cord obstruction, currently rated as 30 percent disabling. 2. Entitlement to an increased rating for a brachial plexus injury, left upper extremity with mild weakness, C5, C6 process, currently rated as 20 percent disabling. 3. Entitlement to an increased rating for residuals of a compression fracture, T12, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from October 1984 to December 1986. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of May 1991 by the Department of Veterans Affairs (VA) Columbia, South Carolina, Regional Office (RO). The veteran has made contentions with regard to issues of service connection for arthritis, service connection for an adjustment disorder, service connection for residuals of a cerebrovascular accident, and service connection for a seizure disorder. However, those issues have not been fully developed or certified for appellate review. Accordingly, the Board refers the issues to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO made a mistake by not assigning a rating higher than 30 percent for her bronchial asthma with functional vocal cord obstruction. She reports that the disorder causes her to have severe bronchospasms. Treatment for the disorder reportedly has included numerous hospitalizations and heavy doses of powerful medications. The veteran asserts that as a result of the asthma she cannot walk more than 30 to 50 feet without becoming markedly dyspneic. She asserts that she has asthma attacks as often as twice a week. The veteran also contends that the RO made a mistake by not assigning a rating higher than 20 percent for a brachial plexus injury, left upper extremity with mild weakness, C5, C6 process. She asserts that the impairment of her left upper extremity is more than mild in degree. Finally, the veteran contends that the RO made a mistake by not assigning a rating higher than 10 percent for her residuals of a compression fracture, T12. She asserts that the disorder causes a great deal of pain and makes it extremely difficult for her to bend over and then rise again. 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 evidence supports the veteran's claims for increased ratings for bronchial asthma and residuals of a compression fracture of T-12, but that the preponderance of the evidence is against the clam for an increased rating for a brachial plexus injury. FINDINGS OF FACT 1. The bronchial asthma with functional vocal cord obstruction is severe in degree. 2. The brachial plexus injury, left upper extremity with weakness, C5, C6 process, is no more than mild in degree. 3. The residuals of a compression fracture, T12, are productive of muscle spasm. CONCLUSIONS OF LAW 1. The criteria for a 60 percent disability rating for bronchial asthma with functional vocal cord obstruction, are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.97, Diagnostic Code 6602 (1993). 2. The criteria for a rating higher than 20 percent for a brachial plexus injury, left upper extremity with mild weakness, C5, C6 process, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.124a, Diagnostic Codes 8513, 8613, 8713 (1993). 3. The criteria for a 20 percent rating for residuals of a compression fracture, T12, are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71, Diagnostic Codes 5291, 5295 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has found that the veteran's claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the claims are not inherently implausible. The Board is also satisfied that all relevant evidence has been properly developed. Therefore, no further assistance to the veteran with the development of evidence is required. I. Entitlement to an Increased Rating for Bronchial Asthma with Functional Vocal Cord Obstruction. The Board has considered the full history of the veteran's bronchial asthma with functional vocal cord obstruction. A report of medical history given by the veteran in August 1984 for the purpose of her enlistment shows that she reported that she did not know whether she had a history of asthma. A report of a medical examination conducted at that time shows that no significant abnormalities were noted, and that she was found to be qualified for enlistment. The veteran's service medical treatment records show that she was treated and hospitalized on several occasions during service for complaints of shortness of breath. She was diagnosed as having asthma in January 1986 after being hospitalized for treatment of coughing, shortness of breath and wheezing. She gave a history of having had an episode of shortness of breath during high school, and of a physician diagnosing hyperventilation and possible asthma at that time. A service medical board report, apparently prepared in August 1986, shows that subsequent to her initial hospitalization, the veteran had additional episodes of wheezing and shortness of breath. She was placed on medications including steroids. Skin testing was positive for allergic reactions to trees, grasses, and dust. Physical fitness tests were done in February 1986, but were felt to be atypical for asthma. Additional PFT's were conducted but were described as being difficult to interpret due to marked variation secondary to effort. In May 1986, the veteran was noted to have another episode of wheezing and shortness of breath. That episode, however, was felt to be atypical for asthma because physical exam findings diagnsotic of asthma were lacking. In addition, she was noted to have completely normal blood gasses. The findings were felt to be consistent with bronchospasm. Later in May she was readmitted again with wheezing and shortness of breath. It was felt that her symptoms were out of proportion for her examination findings. On May 14, 1986, she again complained of marked wheezing and shortness of breath. Physical examination was lacking for features of asthma and blood gasses were normal. She was noted after the examination to have intermittent suprasternal notch restrictions. and this was felt to be consistent with recurrent functional false vocal cord obstruction. On May 21, the veteran had a further exacerbation of wheezing and shortness of breath. ENT evaluation revealed adduction of her false vocal cords. An exercise challenge on June 4, 1986 was felt to be abnormal and diagnostic of asthma. A repeat test under more controlled circumstances on June 10, 1986, revealed changes that were effort dependent with no evidence of obstruction in either the upper or lower airways. The records show that after careful review of all pulmonary function tests for the prior six months, it was felt that the veteran had recurrent functional false vocal cord obstruction leading to upper airway obstruction and asthma. The etiology of the functional false vocal cord obstruction was unknown, but it was felt that it was possibly secondary to stress and may be a conversion disorder. The medical board concluded that the veteran was medically unfit for service. Therefore, she was referred to the Physical Evaluation Board for separation from service. A report from the Physical Evaluation Board shows that it concluded that the veteran had a functional vocal cord obstruction, ratable as 30 percent disabling, and mild bronchial asthma, ratable as 10 percent disabling. She was discharged from service in December 1986. In January 1987, the veteran submitted a claim to the VA for disability compensation. The veteran was afforded a disability evaluation examination by the VA in July 1987. Subsequently, in a rating decision of August 1987, the RO granted service connection for bronchial asthma with functional vocal cord obstruction rated as 30 percent disabling. The veteran was afforded another disability evaluation examination in November 1988. The examiner described the veteran's asthma as being moderately severe. Pulmonary function testing showed that there was poor effort on the pre-bronchodilator loops. The post bronchodilator study was normal. In a decision of February 1989, the RO confirmed the previously assigned rating. In March 1989, the veteran requested an increased rating. A VA hospital discharge summary dated in March 1989 shows that the veteran was hospitalized for treatment of asthma and bronchitis. Subsequently, in a decision of July 1989, the RO confirmed the previously assigned 30 percent rating. In June 1990, the veteran, through her representative, requested an increased raing for her asthma. The RO denied that request in a decision of May 1991, 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 38 C.F.R. § 4.97, Diagnostic Code 6602 (1993), a 30 percent rating is warranted for bronchial asthma which is moderate in degree with rather frequent asthmatic attacks (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks. A 60 percent rating is warranted for asthma which is severe with frequent attacks of asthma (one or more attacks weekly) with marked dyspnea on exertion between attacks and only temporary relief by medication, more than light manual labor is precluded. The evidence pertaining to the current severity of the veteran's asthma with functional vocal cord obstruction includes a letter dated in May 1990 from the veteran's employer [now former] which is to the effect that the veteran missed numerous days of work due to asthma. The evidence also includes medical records dated in 1989 and 1990 from the Baptist Medical Center at Columbia South Carolina and from a private physician, Richard Brogan, M.D. The records show that the veteran has been hospitalized for treatment of exacerbations of asthma on a number of occasions. In a letter dated in May 1990, Dr. Brogan described the veteran's asthma as being severe and very difficult to control. A VA hospital discharge summary dated in March 1989 also shows that the veteran was hospitalized for treatment of asthma. A report of a special pulmonary examination conducted by the VA in February 1991 shows that the veteran gave a history of having bad exacerbations of asthma once every two or three months. On physical examination she was well developed, obese, and in no distress. Pulmonary examination showed no distress in her breathing. She had end-expiratory wheezes which became more pronounced on a forced expiratory effort. There was no inspiratory wheezing. There was no use of accessory muscles of ventilation, but the examiner noted that the veteran was not having an acute attack. A report of pulmonary function tests conducted by the VA in March 1991 shows that although spirometry revealed inconsistent effort making accurate interpretation difficult, there appeared to be a severe ventilatory defect present which was not clearly obstructive or restrictive. In summary, the evidence shows that the veteran's asthma with functional vocal cord obstruction has required continuous treatment, that it has been characterized by her treating physician as being severe, and that VA pulmonary function tests reflected severe impairment. Based on the foregoing evidence, it is the judgment of the Board that the veteran's bronchial asthma with functional vocal cord obstruction is severe in degree. Accordingly, the Board concludes that the criteria for a 60 percent disability rating for bronchial asthma with functional vocal cord obstruction, are met. The Board also finds that a rating higher than 60 percent is not warranted. Under Diagnostic Code 6602, a 100 percent rating is warranted for asthma which is pronounced, with asthmatic attacks very frequently with severe dyspnea on slight exertion between attacks and with marked loss of weight or other evidence of severe impairment of health. Such manifestations are not shown by the evidence of record. In this regard, the Board notes that during the most recent examination, neither severe dyspnea, nor weight loss was noted. A rating higher than 60 percent is also not warranted on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1) (1993). The disorder does not present such an unusual disability picture as to render impractical the application of the regular schedular standards. II. Entitlement to an Increased Rating for a Brachial Plexus Injury, Left Upper Extremity with Weakness, C5, C6 Process. The Board has considered the full history of the veteran's brachial plexus injury, left upper extremity with weakness, C5, C6 Process. Medical records dated in December 1986 and January 1987 from service hospitals show that the veteran was involved in a motor vehicle accident on December 15, 1986. She reported complaints of back pain, neck pain, left hip pain, weakness in the left arm, and numbness in the left hand. An X-ray of the spine was interpreted as revealing a compression fracture at T12. The diagnoses included (1) Compression fracture, T12; and (2) brachial plexus injury, left upper extremity with weakness, C5 and C6 roots. Records dated in February, March, and April 1987 show that she received follow up care and physical rehabilitation. In June 1990, through her representative, the veteran submitted a claim to the VA for disability compensation for the injuries which she received in the automobile accident in December 1986. The veteran was afforded a special orthopedic evaluation examination by the VA in February 1991. Subsequently, in a rating decision of May 1991, the RO granted service connection for a brachial plexus injury, left upper extremity, with mild weakness, C5, C6 process, and assigned a 20 percent disability rating. In the same rating action, the RO also granted service connection for residuals of compression fracture, T12, with pain and tenderness, and assigned a 10 percent rating. The veteran disagreed with those ratings and perfected this appeal. Under 38 C.F.R. § 4.124a, Diagnostic Codes 8513, 8613, 8713 (1993), a 20 percent rating is warranted for a disorder resulting in mild incomplete paralysis of the radicular nerve groups. A 40 percent evaluation is warranted for a disorder resulting in moderate incomplete paralysis. The evidence regarding the severity of the veteran's brachial plexus injury includes a report of a VA disability evaluation examination conducted in July 1987 which shows that the veteran had a weaker grip in her left hand ever since a motor vehicle accident during service. A VA hospital discharge summary dated in March 1989 shows that while the veteran was being treated for an acute exacerbation of asthma, it was noted that she had a questionable brachial plexus lesion. No specific examination findings were noted in the record; however, it was noted that it was thought that it was possible that there was psychological disease rather than a brachial plexus lesion. Hospitalization records dated in March 1990 from the Baptist Medical Center show that, although the veteran had a past history of left upper extremity weakness , a review of systems revealed no recent musculoskeletal or neurologic complaints. Similarly, a medical record dated in April 1990 from the Baptist Medical Center shows that, aside from a past medical history of chronic back problems, her review of systems revealed no other significant musculoskeletal or neurologic problems. Thus, at that point in time, the brachial plexus injury was apparently not productive of any impairment. A hospital record from the Baptist Medical Center dated in December 1990 shows that while hospitalized for treatment of asthma the veteran had abnormal motor activity which was compatible with seizure. She subsequently had marked weakness of the left arm and leg. The Board notes that no health care provider has attributed the weakness to the brachial plexus injury. A report of a special orthopedic evaluation examination conducted by the VA in February 1991 shows that the veteran reported a history of having sustained a brachial plexus injury during service, and of having done fairly well since that time with mild to moderate weakness on the left side. She also gave a history of having a seizure in December 1990 and having become left sided hemiparetic. Examination revealed that her left side upper and lower extremities were flail. The examiner noted that it was difficult to assess the extent of the brachial plexopathy at that time because there was more of a problem with the cerebral hemispheres to the involved left side. VA treatment records dated in March 1991 show that the impression of the neurology department was probable spurious left hemiparesis. Again, no physician attributed the increased left side disability to the veteran's service connected left brachial plexus injury. Finally, a report of a disability evaluation examination conducted by the VA in December 1992 shows that the veteran gave a history of having received a brachial plexus injury on the left in a December 1986 automobile accident. The examiner noted, however, that her course had been complicated by some form of cerebrovascular accident, the origin of which was unknown. Examination revealed that the left upper extremity was initially very weak, as function in the extremity had deteriorated after the cerebrovascular accident. The patient was able to move the extremity, but reported decreased strength throughout, particularly with regard to grip. The impression was brachial plexopathy, left, complicated by cerebrovascular injury with persistent lack of functional strength and maintenance of passive range of motion. The Board finds that the brachial plexus injury, left upper extremity with weakness, C5, C6 process, is no more than mild in degree. The recent deterioration in functioning of the left arm and leg is shown to be due to the nonservice-connected cerebrovascular accident. The manifestations of a nonservice connected disorder may not be used in assigning an increased rating for a service-connected disorder. See 38 C.F.R. § 4.14 (1993). Accordingly, the Board concludes that the criteria for a rating higher than 20 percent for a brachial plexus injury, left upper extremity with mild weakness, C5, C6 process, are not met. The Board also finds that a rating higher than 20 percent is not warranted on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1) (1993). The disorder does not present such an unusual disability picture as to render impractical the application of the regular schedular standards. III. Entitlement to an Increased Rating for Residuals of a Compression Fracture, T12. The Board has considered the full history of the veteran's residuals of a compression fracture at T-12. The facts regarding the origin of the disorder are summarized above in conjunction with the facts pertaining to the brachial plexus injury. Under 38 C.F.R. § 4.71, Diagnostic Code 5291 (1993), a 10 percent disability rating is warranted for a disorder which is productive of moderate or severe limitation of motion of the dorsal spine. The Board further notes that under Diagnostic Code 5295, a 20 percent rating is warranted for a lumbosacral strain which is productive of muscle spasm on extreme forward bending, and unilateral loss of lateral spine motion in a standing position. A 40 percent rating may be assigned where the disorder is severe in degree with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. After considering all of the evidence, the Board finds that a 20 percent rating may be assigned for the veteran's residuals of a compression fracture of the dorsal spine by rating the disorder by analogy to a lumbosacral strain under Diagnostic Code 5295. The evidence regarding the current severity of the veteran's compression fracture includes a report of a special orthopedic evaluation examination conducted by the VA in February 1991 which shows that the examiner noted that the veteran had a history of having a mild compression fracture of the T11 and T12 vertebral bodies. This reportedly had caused back pain. Examination revealed tenderness over the T10, T11, T12, and L1 regions. It was diffuse tenderness and centralized over the midline. An X- ray was interpreted as showing minimal, at best, compression fractures at T10 and T11. The examiner noted that the compression fractures did not seem to be bothering the veteran very much, and that her chief problems were instead related to a stroke which reportedly occurred in December 1990. A report of a disability evaluation examination conducted by the VA in December 1992 shows that the veteran reported complaints of having pain at her fracture sites. She stated that the pain occurred daily, originating in the midline and radiating to the buttocks bilaterally. She stated that the pain was exacerbated by weather changes, turning, bending, and driving on rough pavement. Examination revealed there was bilateral paraspinus muscle spasm. There was also tenderness over the midline in the lower thoracic region. Any attempts to move were reportedly quite painful. The diagnoses included persistent and increasing pain after T11, T12 compression fractures without apparent neurologic compromise, examination complicated by sequelae of CVA. Based on the most recent VA examination, the Board finds that the residuals of a compression fracture, T12, are productive of muscle spasm. Accordingly, the Board finds that the criteria for a 20 percent rating for residuals of a compression fracture, T12, are met. The Board further finds, however, that a rating higher than 20 percent is not warranted. Under the schedular criteria, a 40 percent rating may be assigned for severe back disorder. The evidence, however, does not demonstrate that the disorder is productive of severe manifestations such as those listed under Diagnostic Code 5295. The Board also finds that a rating higher than 20 percent is not warranted on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1) (1993). The disorder does not present such an unusual disability picture as to render impractical the application of the regular schedular standards. ORDER A 60 percent rating for bronchial asthma with functional vocal cord obstruction is granted. An increased rating for a brachial plexus injury, left upper extremity with mild weakness, C5, C6 process, is denied. A 20 percent rating for residuals of a compression fracture, T12, is granted, subject to the law and regulations applicable to the payment of monetary benefits. 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.