BVA9505327 DOCKET NO. 92-19 048 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Entitlement to an effective date prior to February 17, 1989, for the grant of service connection for pulmonary tuberculosis. 2. Entitlement to an increased evaluation for pulmonary tuberculosis, currently evaluated at 10 percent. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office in Manila, Philippines (RO), which denied the benefits sought on appeal. The veteran, who had active service from April 1943 to October 1945, appealed that decision to the BVA, and the case was initially received at the Board in October 1992. A July 1994 BVA decision remanded this case to the RO for further development, and the case was returned to the Board in January 1995. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the RO was incorrect in not granting the benefits sought on appeal. The veteran maintains, in substance, that he has suffered from pulmonary tuberculosis since his period of military service and that he has continuously pursued a claim for service connection for pulmonary tuberculosis since 1988. The veteran also maintains that the current evaluation assigned for his pulmonary tuberculosis disability does not accurately reflect the severity of that disability. The veteran reports that he experiences symptomatology referable to his tuberculosis which would warrant a higher evaluation. Reference is made to the evidence of record as supporting these contentions. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on a review of the 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 effective date prior to February 17, 1989, for the grant of service connection for pulmonary tuberculosis, and the evidence supports an evaluation of 30 percent for pulmonary tuberculosis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. A claim for service connection for pulmonary tuberculosis was received by the RO from the veteran on February 17, 1989. 3. The veteran's pulmonary tuberculosis is productive of moderate impairment. CONCLUSIONS OF LAW 1. The requirements for an effective date prior to February 17, 1989, for the grant of service connection for pulmonary tuberculosis have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. §§ 3.102, 3.400 (1994). 2. The schedular criteria for an evaluation of 30 percent for pulmonary tuberculosis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.97, Diagnostic Code 6731 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that the veteran has presented claims which are not implausible when his contentions and the evidence of record are viewed in the light most favorable to those claims. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. I. Effective Date for Grant of Service Connection for Pulmonary Tuberculosis In June 1951, the RO received an application for VA benefits from the veteran in which he claimed entitlement to service connection for disorders which included pulmonary tuberculosis. An October 1952 rating decision considered and denied the veteran's claim for service connection for pulmonary tuberculosis, and he was so notified of the denial of service connection for his claims by a letter from the RO dated in October 1952. The record reflects no further correspondence from the veteran until an August 1974 letter requested information on the status of his claim for disability benefits. The RO informed the veteran in a letter dated in September 1974 that there had been no change in the status of his claim since the last action. On numerous subsequent occasions the veteran requested service connection for pulmonary tuberculosis, and on each occasion, the RO denied the veteran's claim. In an October 1986 letter to the veteran, he was informed that: "Your claim was considered on several occasions and it was determined that the evidence of record is insufficient to show that you are suffering from any disability resulting from a disease or injury incurred during your military service." The next correspondence from the veteran was received by the RO on February 17, 1989. That claim for service connection for pulmonary tuberculosis was subsequently allowed by the BVA on the basis of the submission of new and material evidence which was sufficient to reopen the claim for pulmonary tuberculosis. A June 1992 rating decision assigned an effective date for pulmonary tuberculosis of February 17, 1989, the date the RO received the veteran's claim. "Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication...shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (West 1991). Furthermore, the effective date of an award for a reopened claim and a claim allowed on the basis of new and material evidence is the date of the receipt of a new claim or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(1)(ii), (r) (1994). Since the allowance of the veteran's claim for service connection was based on new and material evidence received in connection with a claim filed by the veteran on February 17, 1989, the RO's choice of the date the veteran's reopened claim was received was correct. It should be noted that the veteran has not alleged any error in any prior determination by the RO. Of controlling legal significance in this case is the date of receipt of the reopened claim, not the length of time the veteran has had the disease. In short, there is no legal basis to award service connection for pulmonary tuberculosis prior to February 17, 1989. II. Evaluation of Pulmonary Tuberculosis The RO's June 1992 rating decision which effectuated the Board's February 1992 rating decision assigned a 10 percent evaluation based on the evidence of record which included reports of a 1947 hospitalization of the veteran for treatment of pulmonary tuberculosis and the findings of a VA examination performed in March 1992. The 1947 hospital summary indicated that the veteran had moderately advanced pulmonary tuberculosis, and while the 1992 VA examination did not specify the degree of advancement of the tuberculosis, the examination report did question whether or not pulmonary tuberculosis was active at the time of the examination. In order to more fully assess the activity and advancement of the veteran's pulmonary tuberculosis, the Board remanded the case in July 1994 to afford the veteran a VA examination. It would appear that shortly following the transfer of the veteran's claims file to the Board in October 1992, the veteran underwent a VA examination in October 1992, and therefore, the record for consideration contains the reports of two VA examinations performed to assess the activity level and degree of advancement of the veteran's tuberculosis. At this point, the Board would note that neither the October 1992 nor August 1994 examination report, or the September 1993 private X-ray report submitted by the veteran, demonstrates that the veteran satisfies the schedular criteria for the next higher 30 percent evaluation. Specifically, there are no findings of "considerable pulmonary fibrosis and moderate dyspnea on slight exertion, confirmed by pulmonary function tests." 38 C.F.R. § 4.97, Diagnostic Code 6731 (1994). Although the private X-ray report appears to suggest that the veteran had far-advanced bilateral pulmonary tuberculosis, both VA examinations describe the veteran as having moderately advanced pulmonary tuberculosis, consistent with that shown in the 1947 hospital record. None of the evidence, including X-ray examination and sputum testing, indicated that the veteran had active pulmonary tuberculosis, and both the VA examinations concluded that the veteran's pulmonary tuberculosis was inactive. As previously mentioned, there were no findings of the presence of fibrosis on X-ray examination, the October 1992 X-ray study contained an impression of moderate bilateral infiltrates and the 1994 VA X-ray contained an impression of moderately advanced bilateral infiltrates. Significantly, pulmonary function testing "was unsuccessful in spite of repeated attempts due to veteran's claimed weakness and inability to cooperate." Nevertheless, the Board is of the opinion that there is a question as to which of two disability evaluations most nearly approximates the veteran's overall disability picture. 38 C.F.R. § 4.7 (1994). That stated, the Board would note that there is no evidence of record which indicates that the veteran has a severe disability attributable to pulmonary tuberculosis with findings of "extensive fibrosis, severe dyspnea on slight exertion with corresponding ventilatory deficit confirmed by pulmonary function testing with marked impairment of health," thereby warranting the assignment of a 60 percent evaluation under 38 C.F.R. § 4.97, Diagnostic Code 6731 (1994). Resolving reasonable doubt in the veteran's favor as to which of two disability evaluations most nearly approximates the veteran's overall disability picture, the Board concludes that the veteran's disability picture more nearly approximates that of a moderate disability, thereby warranting the assignment of a 30 percent evaluation. In reaching this decision, the Board has considered the complete history of the disability in question, as well as the current clinical manifestations and the effect this disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1994). The nature of the original disability has been reviewed and the functional impairment which can be attributed to the disability has been taken into account. The veteran's pulmonary tuberculosis is simply not productive of impairment to a degree to warrant a higher schedular evaluation under Diagnostic Code 6731. Furthermore, the Board finds that the disability picture with respect to the veteran's pulmonary tuberculosis is not so exceptional or unusual so as to warrant an evaluation in excess of 30 percent on an extra-schedular basis. There has been no showing that the veteran's pulmonary tuberculosis has caused marked interference with employment or necessitated frequent periods of hospitalization, or otherwise "render[s] impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (1994). ORDER An effective date prior to February 17, 1989, for the grant of service connection for pulmonary tuberculosis is denied. Subject to the provisions governing the award of monetary benefits, a 30 percent evaluation for pulmonary tuberculosis is granted. CHARLES E. HOGEBOOM 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.