Decision Date: 07/13/95 Archive Date: 01/19/96 DOCKET NO. 93-15 692 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for pulmonary hypertension and/or arterial hypertension. 2. Entitlement to service connection for chronic rhinitis. 3. Entitlement to service connection for a skin disorder. 4. Entitlement to a separate evaluation for the residuals of resection of bullae in the upper lobe of the left lung and left pleural abrasion secondary to service-connected chronic obstructive pulmonary disease. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa Schlecht, Associate Counsel INTRODUCTION The appellant had active service from November 1968 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied service connection for pulmonary hypertension, for a skin condition, for chronic rhinitis, and for neuritis of the left chest secondary to service-connected chronic obstructive pulmonary disease (COPD). The Board notes that, at a hearing conducted in December 1991, the appellant raised an additional claim of entitlement to service connection for hypertension. By a hearing officer decision dated September 1992, the RO denied service connection for hypertension. The appellant filed a Form 1-9 in October 1992 disagreeing with the denial of service connection for hypertension. The record does not reflect that this issue has been certified for appeal; however, it is clear that the appellant equates pulmonary hypertension with arterial hypertension and that his claim also includes service connection for the arterial hypertension for which he receives treatment. Therefore, the proper issue is as listed on the preceding page. The Board also notes that in June 1989 the appellant filed a claim of entitlement to service connection for conditions alleged to have resulted from Agent Orange. The claim of entitlement to service connection for disabilities resulting from exposure to Agent Orange are not before the Board for appellate review. The issue of entitlement to service connection for disabilities resulting from exposure to Agent Orange is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he is entitled to a separately- compensable rating for the residuals of resection of bullae in the upper lobe of the left lung and left pleural abrasion secondary to service-connected chronic obstructive pulmonary disease. He alleges that those residuals include pain in his left chest and at the site of a surgical scar, diagnosed as possible neuritis, and limitation of motion resulting from that pain. 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 appellant’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 favors the assignment of a separate evaluation for service- connected residuals of left pleural abrasion and resection of bullae of the upper lobe of the left lung, including a painful scar of the left chest, secondary to service- connected chronic obstructive pulmonary disease (COPD). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the claimant's appeal has been obtained by the RO. 2. Resection of bullae of the upper lobe of the left lung and left pleural abrasion, performed in March 1989, was required as a result of the appellant’s service-connected COPD. 3. Residuals of a left pleural abrasion and resection of bullae of the upper lobe of the left lung are manifested by a painful scar and pain in the left chest exacerbated with coughing, deep breaths, and certain movements. 4. The symptomatology of the appellant's COPD is distinct and separate from the symptomatology of residuals of resection of bullae of the upper lobe of the left lung and pleural abrasion, and the symptomatology of those residuals has not been considered in evaluating the disability due to the appellant’s service-connected COPD. CONCLUSION OF LAW Residuals of resection of bullae of the upper lobe of the left lung and left pleural abrasion are due to or the result of service-connected COPD, and are separate and distinct from disability due to COPD. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.310, 4.14, 4.25, 4.97, Diagnostic Codes 6603, 6814 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has submitted medical evidence that he has developed an additional disability as a result of his service connected disability, and that claim is therefore well- grounded within the meaning of 38 U.S.C.A. § 5107(a), which mandates a duty to assist the veteran in developing all facts relevant to his claim. Littke v. Derwinski, 1 Vet.App. 90, 93 (1990). Relevant evidence of record includes service medical records, records of VA hospitalizations in April and December 1974 and February to March 1975, reports of private hospitalization in August 1986, February 1989, and March 1989, VA examinations conducted in August 1989 and April 1991, statements from private physicians, including a statement dated August 1990, the appellant’s testimony at hearings conducted in August 1989 and December 1991, and outpatient private and VA medical records dated 1979 through 1991, among other evidence of record. The Board is satisfied that all available evidence necessary for an equitable disposition of the appeal has been obtained. By a rating decision dated October 1973, the appellant was granted service connection for COPD. Reports of a March 1989 private hospitalization noted that the appellant had mild restrictive lung disease and moderately severe obstructive lung disease, and noted as well that the appellant had a history of previous right pneumothorax and, most recently, a spontaneous pneumothorax of the left lung in February 1989. The reports stated that further pneumothoraces were “inevitable” without surgery. As a result of the appellant’s COPD and as prophylaxis to prevent recurrence of pneumothoraces, resection of bullous areas in the upper lobe of the left lung and a left pleural abrasion were performed in March 1989. By rating decision issued May 1989, the appellant’s service-connected COPD, status post resection of bullous areas in the upper lobe of the left lung and a left pleural abrasion, was rated 30 percent disabling under 38 C.F.R. § 4.97, Diagnostic Codes 6603 and 6814. On VA examination in August 1989, the examiner noted that the appellant had chest pain in the left chest in the area of the surgery. The appellant submitted a private physician’s statement, dated August 1990, stating that the appellant had pain in the surgical scar in the left chest. The private physician provided a diagnosis of possible neuritis. On VA examination conducted in April 1991, the examiner noted left chest pain, increased with coughing, deep breathing, and movement. The examiner’s impression was left chest pain secondary to prior surgery. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1994). Evaluation of disability is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. In determining an appropriate evaluation for a disability, VA applies a schedule of percentage ratings of reduced earning capacity in civil occupations due to specific injuries or combination of injuries. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. A proper rating evaluation of a veteran's disability contemplates the history of the disability, 38 C.F.R. § 4.1, and must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (1993), except where such separate rating would result in evaluation of the same disability under various diagnoses. See 38 C.F.R. § 4.14. More specifically, the regulation at § 4.14 notes that some symptoms, such as dyspnea, may result from many causes, and that the evaluation of the same manifestation under different diagnoses is to be avoided. As the Court of Veterans Appeals noted in Brady v. Brown, 4 Vet.App. 203, 206 (1993), “[i]mplicit within [the language of 38 U.S.C.A. § 1155] is the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology” because such a result would overcompensate the claimant for the actual impairment of his earning capacity. Under Diagnostic Code 6603, providing rating criteria for pulmonary emphysema, disability is evaluated based on evidence of ventilatory impairment on pulmonary function tests, dyspnea on exertion, with the severity of dyspnea rated according to ability to engage in exertion. Diagnostic Code 6814 provides criteria for rating disability due to pneumothorax. Spontaneous pneumothorax is rated 100 percent disabling for 6 months, with residuals rated under Diagnostic Code 6602. Diagnostic Code 6602 is used to evaluate bronchial asthma, based on number and severity of asthmatic attacks, with higher evaluations for marked dyspnea on exertion between attacks and greater frequency of episodes of impaired breathing. Pain in the chest, chest wall, or pain on movement is not a rating factor under Diagnostic Codes 6603, 6814, or 6602. In Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994), the Court held that a separate rating could be granted for a scar where none of the symptomatology for any one condition was duplicative of or overlapping with the symptomatology of another. In this case, the veteran's service-connected COPD has been rated under Diagnostic Codes 6603 and 6814. None of the residuals claimed as a result of resection of the left lung resection and left pleural abrasion have been rated under those codes. The appellant has not claimed that he is entitled to a separate rating for any residuals of surgical procedures related to COPD, such as decreased lung function, which are already evaluated under the criteria for the codes used to evaluate the appellant’s service-connected COPD. Recognizing that the evaluation of the same manifestations of a given disability under different diagnoses is to be avoided, it is the decision of that Board that a separate rating for residuals of resection of bullae of the upper lobe of the left lung and pleural abrasion, including left chest pain or a painful scar of the left chest, would not be duplicative of any symptomatology for which the appellant is currently rated, and would not constitute pyramiding. ORDER Service connection is granted for a separately ratable disability of residuals of resection of bullae of the upper lobe of the left lung and left pleural abrasion secondary to COPD. REMAND The appellant contends that he should be granted service connection for a skin condition incurred in service. The service medical records associated with the claims folder do not include an entrance examination, but a separation examination conducted in April 1973 reflects that a discoloration was noted on the appellant’s right shoulder. The appellant is seeking service connection for a skin condition of the right shoulder. Further factual development to determine the nature of a skin condition on the appellant’s right shoulder and to determine whether a current skin condition is related to a skin condition noted in service is required. See Schafrath v. Derwinski, 1 Vet.App. 589 (1991); Littke v. Derwinski, 1 Vet.App. 90 (1990); Murphy v. Derwinski, 1 Vet.App. 78 (1990). The appellant also contends that he has rhinitis which was due to or aggravated by his service-connected lung condition. Further factual development to determine whether the appellant currently has rhinitis and whether that condition may have been caused by or aggravated by the appellant’s service-connected COPD is required. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Service connection is currently warranted when aggravation of a non- service-connected condition is proximately due to or the result of a service-connected condition, but that aggravation is compensable only to the degree of disability over and above the degree of disability which would exist without such aggravation. Allen v. Brown, 7 Vet.App. 439, 448, 449 (1995); see also Leopoldo v. Brown, 4 Vet.App. 216 (1993), Tobin v. Derwinski, 2 Vet.App. 34 (1991). As noted above, the appellant is clearly claiming service connection for arterial hypertension as well as pulmonary hypertension, and this claim must be adjudicated. The difference between these disabilities should be explained to him. Accordingly, this case is remanded to the RO for the following development: 1. The RO should undertake an additional search for all service medical records of the veteran's period of active service, particularly an entrance examination. 2. The veteran should be afforded a VA examination by a dermatologist to determine the nature, severity, and etiology of a skin condition of the right shoulder. The claims folder must be made available to the examiner for review before the examination, and must be reviewed prior to the examination. After reviewing the claims folder and examining the veteran, the examiner should provide a medical opinion as to whether a current skin condition of the right shoulder is related to a skin condition in service. The examiner should state the basis for conclusions as to the etiology of any skin disorder found. If an opinion as to the relationship between the veteran's current skin condition and a skin condition in service cannot be rendered without resort to mere conjecture, the examiner should so state in the record. The examination should be conducted and reported in accordance with the guidelines set forth in the VA Physician's Guide for Disability Evaluation Examinations. 3. The veteran should be afforded a special ear, nose and throat examination to determine the nature, severity, and etiology of any chronic rhinitis, if found. The claims folder must be made available to the examiner for review before the examination, and must be reviewed prior to the examination. After reviewing the claims folder and examining the veteran, the examiner should provide a medical opinion as to whether rhinitis, if found, was caused or aggravated by the veteran’s service-connected COPD. If an opinion as to the relationship between the veteran's current rhinitis and his COPD cannot be rendered without resort to mere conjecture, the examiner should so state in the record. The examination should be conducted and reported in accordance with the guidelines set forth in the VA Physician's Guide for Disability Evaluation Examinations. 4. The RO should adjudicate the issue of service connection for arterial hypertension and should also review the additional evidence obtained through additional factual development and readjudicate the appellant's claims for service connection of a skin condition and of rhinitis. This readjudication should include consideration of aggravation of rhinitis by a service- connected disability. Allen v. Brown, 7 Vet.App. 439 (1995). If the claims remain denied, the appellant and his representative should be provided a supplemental statement of the case which includes a summary of the evidence and applicable laws and regulations. The appellant and his representative should be afforded a reasonable opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate consideration. No action is required of the veteran until he is notified. The Board intimates no opinion as to the ultimate outcome of this case by the action taken above. HOLLY E. MOEHLMANN 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). - 2 -