BVA9506384 DOCKET NO. 92-15 036 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to an increased evaluation for pulmonary tuberculosis, currently rated 60 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant had pre-war service from November 1941 to December 7, 1941, and was in beleaguered status from December 8, 1941 to July 1942. He was a prisoner of war of the Japanese Government from April 10, 1942 to July 3, 1942. He served in the Regular Philippine Army from March 1945 to February 1946. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an October 1989 rating decision of the Manila, Philippines, Department of Veterans Affairs Regional Office (VARO). CONTENTION OF APPELLANT ON APPEAL The appellant contend that his service-connected pulmonary tuberculosis is sufficiently severe to warrant an evaluation in excess of the 60 percent disability rating currently assigned. 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 evidence is against an evaluation in excess of the 60 percent disability rating currently assigned. FINDING OF FACT The appellant's service-connected pulmonary tuberculosis is currently manifested by subjective complaints of cough, and chest and back pain, with clinical findings for severe obstructive lung disease unresponsive to a bronchodilator, and is productive of severe pulmonary tuberculosis, chronic and inactive. CONCLUSION OF LAW The schedular criteria for a disability evaluation in excess of 60 percent for the appellant's service-connected inactive pulmonary tuberculosis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.20, 4.40, 4.97, Diagnostic Code 6731 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. Background A review of the record shows that the appellant served on active duty during the Second World War and was taken a prisoner of war in Bataan in April 1942. The appellant suffered pulmonary disease, malaria, dysentery, and insomnia during captivity; he was released in July 1942. By rating action dated July 1956, the appellant was service connected for pulmonary tuberculosis, Pott's disease, and tuberculous fistula. At that time, the appellant's pulmonary tuberculosis was shown to be moderately advanced and active on VA examination in June 1956. The appellant's pulmonary conditions were closely followed on an outpatient basis thereafter. In January 1970, a VA Tuberculosis Board indicated that recent outpatient treatment reports and studies showed that the appellant's pulmonary tuberculosis had become inactive based on findings for stationary lesions in both the upper lobes. Subsequently, the appellant's pulmonary conditions continued to be medically followed, and numerous VA and private treatment reports showed that the appellant's pulmonary tuberculosis was relatively unchanged. In November 1988, the appellant requested an increased evaluation for pulmonary tuberculosis. In support of his claim, the appellant submitted VA and private treatment records which continued to show moderately advanced, inactive, pulmonary tuberculosis. By rating action dated October 1989, VARO denied the appellant's claim for an increased disability evaluation. The appellant voiced his disagreement with that decision and the pertinent evidence is summarized as follows. In February 1990, a private x-ray study revealed minimal fibrotic infiltrates in the right upper lung. In a private treatment report dated August 1990, the appellant's condition was assessed as "moderate to severe obstructive ventilatory defect with some acutely reversible component combined with a moderate restrictive ventilatory pattern." In a private medical statement dated August 1990, a physician indicated that he had treated the appellant off and on for the past three years for severe chronic obstructive pulmonary disease with episodes of acute exacerbation. VA inpatient treatment reports dated April 1991 reflect the presence of moderately advanced, inactive pulmonary tuberculosis, and a VA discharged summary shows that the appellant was diagnosed with pleural thickening of the left lower lung, atelectasis of the left lung, and emphysema. A private medical statement dated July 1991 reflects that the appellant was admitted to a private hospital for complaints of dyspnea in July 1991. The appellant was treated with antibiotics and bronchodilators. An x-ray study revealed moderately extensive Koch's activity undetermined and partial atelectasis of the left upper lobe; laboratory studies were within normal limits. In 1991, the VA reviewed the x-ray studies performed in April, July, and December 1991. The impression was pulmonary infiltration, bilateral upper lobes and left middle lung field with residuals of pleural disease and pleural calcification; the left middle and lower hemithorax were noted to be unchanged from August 1985 to July 1991. On VA examination in March 1992, the appellant complained of a productive cough and easy fatigability. An x-ray study revealed no changes from the previous studies. A pulmonary function test showed the presence of a mild obstructive defect with no significant response to a bronchodilator. The impression was pulmonary tuberculosis, moderately advanced, bilateral, chronic, inactive, and Stage IV. VA inpatient treatment reports dated August 1992 reflect that the appellant received a discharge diagnosis of "rule out active tuberculosis and rule out abdominal aortic aneurysm." In April 1994, the Board remanded the appellant's claim, along with other issues on appeal, for additional development. In particular, the Board remand decision requested that the appellant receive a comprehensive physical examination to include all appropriate studies. In July 1994, a VA pulmonary tuberculosis examination was conducted. The appellant complained of a cough, and chest and back pains. Spirometry performed in May 1994 showed a severe obstructive ventilatory pattern with air trapping which was not responsive to a bronchodilator. Sputum acid fast bacilli smears were negative. A series of chest x-ray studies revealed a marked thickening of the left chest pleura associated with dense calcification and obliteration of the left costophrenic angle which remained unchanged. In November 1994 after review of the clinical history and recent VA examination, the VA Tuberculosis Board concluded that the appellant has pulmonary tuberculosis, chronic, inactive, and Stage IV; he was also reported to have Pott's disease and severe obstructive lung disease which was unresponsive to a bronchodilator. VA outpatient treatment reports dated May to August 1994 reflect treatment for asthma, gout, benign prostatic hypertrophy, partial atelectasis, and chronic obstructive pulmonary disease. Analysis The appellant is seeking a rating in excess of the currently assigned 60 percent disability evaluation for his service- connected pulmonary tuberculosis. 38 U.S.C.A. § 1155 (West 1991). In evaluating the appellant's request for an increased rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). 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 (1993). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1993). The Board has carefully reviewed the pertinent medical evidence, including the appellant's entire medical history in accordance with 38 C.F.R. § 4.1 (1993) and Peyton v. Derwinski, 1 Vet.App. 282 (1991), and concluded that the appellant is appropriately rated for his service-connected pulmonary tuberculosis. The appellant's pulmonary tuberculosis is currently evaluated under diagnostic code 6731 at the 60 percent disability level. The schedular criteria for evaluating respiratory disorders under diagnostic code 6731 provide for a disability evaluation of 60 percent where there is objective evidence of severe chronic inactive pulmonary tuberculosis as shown by extensive fibrosis, severe dyspnea on slight exertion with corresponding ventilatory deficit confirmed by pulmonary function tests with marked impairment of health; a disability evaluation in excess of 60 percent requires pronounced chronic inactive pulmonary tuberculosis accompanied by advanced fibrosis with severe ventilatory deficit manifested by dyspnea at rest, marked restriction of chest expansion, with pronounced impairment of bodily vigor. 38 C.F.R. § 4.97, Diagnostic Code 6731 (1993). While the appellant's complaints for cough, and chest and back pains have been considered, the Board assigns greater probative weight to the objective medical evidence in the report of VA examination dated July 1994 and the conclusion of the Tuberculosis Board dated November 1994. Clinical findings at the VA examination in July 1994 showed a severe obstructive ventilatory pattern with air trapping, which was noted not to be responsive to a bronchodilator, and a marked thickening of the left chest pleura associated with dense calcification and obliteration of the left costophrenic angle. The VA Tuberculosis Board concluded from the appellant's clinical history and the recent examination findings that the appellant has chronic pulmonary tuberculosis, inactive and Stage IV, along with Pott's disease and severe obstructive lung disease which was unresponsive to a bronchodilator. Based on the above findings, and in accordance with the provisions of 38 C.F.R. §§ 4.7, 4.20 (1993), the undersigned concludes that the disability picture presented supports the 60 percent evaluation currently assigned according to the schedular criteria set forth in diagnostic code 6731, which provides for a 60 percent disability rating for severe pulmonary tuberculosis, inactive and chronic. In accordance with 38 C.F.R. § 4.40 (1993), the Board has considered the appellant's subjective complaints of pain and discomfort on breathing resulting in functional loss. However, in view of clinical findings consistent with the schedular criteria for severe pulmonary tuberculosis, the Board finds that the appellant's disability is properly rated at 60 percent as provided in diagnostic code 6731. The Board has considered the application of the extraschedular provisions set out in 38 C.F.R. § 3.321(b) (1994). However, we find that application of the extraschedular provisions is not warranted in this case. There is no evidence that the appellant's service-connected pulmonary tuberculosis disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Accordingly, the Board concludes that the weight of evidence is against a disability evaluation in excess of 60 percent for the appellant's service-connected pulmonary tuberculosis. ORDER A disability rating in excess of 60 percent for inactive pulmonary tuberculosis is denied. C.P. RUSSELL 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.