Citation Nr: 0005284 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 95-24 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to an evaluation in excess of 30 percent for service-connected pulmonary tuberculosis (PTB). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.M. Daley, Associate Counsel INTRODUCTION The veteran had recognized service from July 1945 to June 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Manila, Philippines, Department of Veterans Affairs (VA) Regional Office (RO). The RO denied a rating in excess of 30 percent for residuals of PTB. In July 1998, the Board remanded the claim for further development. All requested actions have been accomplished, to the extent possible and the Board will proceed to address the issue herein below. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The veteran has been entitled to service connection for PTB since 1946 and that disease entity was never more than moderately advanced, without evidence of far-advanced lesions. 2. PTB has been inactive since January 1958. 3. Residuals of PTB do not cause extensive fibrosis, and/or severe dyspnea on slight exertion with corresponding ventilatory deficit confirmed by pulmonary function tests with marked impairment of health. 4. Residuals of PTB do not cause a forced vital capacity (FVC) of 50-to-64 percent predicted, or; diffusion capacity of carbon monoxide in a single breath (DLCO (SB)) of 40-to-55 percent predicted, or; maximum exercise capacity or oxygen consumption of 15-to-20 milligrams/kilograms/minute with cardiorespiratory limitation; or an forced expiratory volume in one second (FEV-1) of 40-to-55 percent predicted, or; an FEV-1 to FVC ratio of 40-to-55 percent. 5. The probative evidence of record shows the veteran's currently demonstrated respiratory and pulmonary impairment is primarily due to nonservice-connected disability. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for PTB have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.88c, 4.89, 4.97, Diagnostic Codes 6722, 6724, 6731 (1994, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Service medical records reflect that the veteran was hospitalized in 1946 for PTB. X-rays taken in April 1946 showed soft infiltrates in both lungs, interpreted as minimal, bilateral PTB. Subsequent testing during hospitalization showed active, moderately advanced PTB. The impression based on x-rays taken in May 1946 was moderately advanced, fiverocaceous, PTB, bilaterally. The veteran was discharged from hospitalization in May 1946 in fair physical condition. The RO established service connection for moderately advanced, active PTB in May 1949, and assigned a 70 percent rating, effective June 17, 1946. At the time of VA examination conducted in June 1949, the veteran reported an occasional cough, without expectoration or hemoptysis subsequent to service discharge. X-rays revealed evidence of small multiple cavitation and findings were interpreted as suggestive of a moderately advanced, active tuberculosis infection. The diagnosis was chronic, moderately advanced inactive PTB, re-infection type, bilaterally. September 1949 x-rays were interpreted as showing no change since the June 1949 x-ray examination. The impression was moderately advanced, bilateral, inactive PTB. In September 1949, the RO amended the veteran's PTB award, assigning a 50 percent rating, effective November 22, 1949 to September 12, 1954; a 30 percent rating, effective September 13, 1954 to September 12, 1959; and a 20 percent rating, effective September 13, 1959. The veteran's PTB was determined inactive as of September 13, 1959. In a December 1949 decision, the RO further amended prior rating actions to reflect award of a 100 percent rating from December 1, 1949 to September 12, 1951; a 50 percent rating, effective September 13, 1951 to September 12, 1955; a 30 percent rating, effective September 13, 1955 to September 12, 1960; and a zero percent rating, effective September 13, 1960. The claims file contains a report of private x-ray dated in October 1951; VA determined such films to be unsatisfactory and of poor quality. A private physician certified that the veteran required hospitalization for PTB; the veteran was hospitalized in February 1952 and remained hospitalized for 265 days. In September 1952, the RO determined that the veteran's PTB was completely arrested as of September 13, 1949. The November 1952 discharge summary from Crisologo General Hospital indicates that the veteran's PTB was chronic, minimal and inactive, and that further hospitalization was unnecessary. The report of a private June 1956 x-ray examination reflects, in part, Koch's infiltrates, fibro-exudative, in both apices and infraclavicular regions. A review of September 1949 and June 1956 X-rays was performed in July 1956. The recent films showed new hazy infiltrations in the right apex and second anterior interspace. There was clearing in the left upper lung field, but new densities were observed at the base. The conclusion was moderately advanced PTB, unstable from September 13, 1949 to June 3, 1956. During VA examination in August 1956, x-ray examination confirmed numerous hazy ill-defined shadows in both apices and infraclavicular regions, as well as a small cavity in the right upper lung. The conclusion was moderately advanced, bilateral PTB, with cavitation. Smears and cultures were positive for tubercle bacilli. The clinical diagnosis was pulmonary tuberculosis, chronic, moderately advanced, active V. In September 1956, the RO awarded a 100 percent rating for active, moderately advanced PTB, effective June 26, 1956. The veteran underwent VA examination in July 1957. Sputum and gastric cultures were positive for tubercle bacilli but smears were negative. X-ray examination showed clearing in the right upper lung field with obliteration of the cavity previously noted in the right upper lung, but no change on the left. The conclusion was moderately advanced, bilateral PTB, retrogressive from August 6, 1956 to July 22, 1957. The clinical diagnosis was moderately advanced, active, bilateral PTB, Stage V. The examiner recommended hospitalization. In September 1957, the RO continued the 100 percent disability rating for moderately advanced, active PTB. The rating decision notes that the veteran's PTB was re-activated and that he was "continuously shown to have active pulmonary tuberculosis and hospitalization has been recommended." The same physician who conducted the VA examination in July 1957 examined the veteran in January 1958. Smears and cultures were negative for tubercle bacilli. X-ray examination revealed no appreciable change in both upper pulmonary lung fields. Multiple infiltrations appeared partially calcified and apparently fibrotic. The conclusion was moderately advanced, bilateral PTB, stationary from July 22, 1957 to January 2, 1958. The final clinical diagnosis was moderately advanced, inactive, bilateral PTB, Stage V. In March 1958, the RO amended the prior rating action: awarding a 100 percent rating, effective June 26, 1956 to January 1, 1960; a 50 percent rating, effective January 2, 1960 to January 1, 1964; a 30 percent rating, effective January 2, 1964 to January 1, 1969; and a zero percent rating, effective January 2, 1969. The RO assigned these ratings based on the medical findings showing the veteran's PTB had become fully arrested beginning on January 2, 1958. The RO noted that the veteran's 30 percent rating was protected and that reference to the zero percent rating should be deleted. In December 1981, the veteran presented for a VA examination, with complaints of shortness of breath. Laboratory studies were negative for acid fast bacilli. X-ray examination showed fibrocalcific infiltrations in the apices and infraclavicular regions of both upper lobes, described as the residuals of an old tuberculous process. Pulmonary function testing (PFT) was conducted. The physician who concluded that PFTs showed a moderate obstructive defect with no significant response to bronchodilators, and a mild-to- moderate obstructive defect. The final clinical diagnosis was history of PTB with no clinical evidence of that disease found on physical examination, considered to be clinically inactive. In January 1995, the RO received the veteran's claim for an increased evaluation for PTB. He complained of having a hard time breathing. A February 1995 VA outpatient record shows complaints of difficulty breathing with physical activity. A chest x-ray showed that the lungs were aerated, and the pleural spaces were clear. There were multiple small nodules identified in the left upper lobe that could have been consistent with exposure to granulomatous disease. There was also scarring in the right apex. The clinical diagnoses included asthma. In March 1995, the veteran presented at the pulmonary clinic. He reported that he rarely coughed up sputum and had no hemoptysis although occasionally he coughed up a scant amount of blood streaked sputum. He reported occasional wheezing, no visits to the emergency room, and no hospitalization for lung problems. Examination of the chest revealed occasional crackles, decreased breath sounds and no wheezes. A chest x- ray was noted to show hyperinflation compatible with chronic obstructive pulmonary disease (COPD), scarring of the upper lobes and evidence of old granulomatous disease. PFTs were interpreted as showing severe obstructive airway disease and questionable restriction. The physician also stated the veteran reported no symptoms of reactivation such as night sweats or increased sputum production. The PFT findings were: FVC 55 percent of predicted; FEV1 of 35 percent predicted; and FEV1/FVC of 44 percent. Subsequently, the veteran underwent repeated mycobacteriological testing from March to April 1995. Smears were negative for acid fast bacilli and the final culture report notes that findings were probably not significant. The veteran underwent PFT in April 1995, which revealed an FVC of 57 percent predicted; an FEV-1 of 28 percent predicted; and an FEV-1/FVC of 70 percent predicted/34 percent best. The physician concluded that the testing showed severely decreased flows on spirometry, lung volumes were consistent with severe obstructive lung disease, normal DLCO, normal blood gas on room air at rest and minimal desaturation with exercise on room air and rapid recovery to oxygen saturation greater than 90 percent. On VA examination in September 1995, the veteran's complaints included cough, wheezing, and difficulty breathing when walking in excess of thirty feet or while climbing stairs. Physical examination disclosed reduced chest wall mobility, increased resonance on percussion, rales in the apices, and inspiratory and expiratory wheezing on auscultation. The examiner reported that PTB had been inactive since 1958. The report included the February 1995 x-ray examination and the April 1995 PFT. Based on the physical and diagnostic testing, the diagnoses were moderately severe PTB and COPD. At the time of VA outpatient treatment in April 1996, the veteran reported continued moderate wheezing and significant effort dyspnea. He indicated that his wheezing had become worse with the use of inhalers, but he had good relief with the remaining medication. At the time of VA examination performed in February 1997, the examiner noted that the veteran had no signs or symptoms of PTB at the time of the examination. The veteran denied a history of fever, chills, hemoptysis and chest pain. He reported coughing but denied discolored sputum. The veteran also reported significant shortness of breath with many physical activities. The physician stated that the veteran complained of chronic cough, but the description of the cough was not consistent with the clinical definition of chronic bronchitis. The veteran also reported weight loss of several pounds over the prior few years. The veteran related that he was a cigarette smoker and he had smoked two-to-three packs per day. Physical examination showed the lungs were emphysematous. Chest percussion disclosed increased resonance and a few rhonchi were heard on auscultation. The physician noted wheezes, but no crepitations. February 1997 PFT results showed an FVC of 31 of predicted; and FEV-1 of 26 percent of predicted; and an FEV-1 to FVC ratio was 56 percent of predicted. The physician stated "[t]his is consistent with obstructive ventilatory impairment of moderate severity." The veteran had some improvement in FVC following bronchodilator therapy. The physician reported that the lung volume determination revealed the presence of emphysema manifested by an increase in residual volume to four liters or 184 percent of predicted. Based on the examination, the physician concluded that the veteran was symptomatic with shortness of breath at that time. "[The veteran's] physical examination is consistent with some bronchospasm and emphysema. Pulmonary function testing results revealed evidence for emphysema. I must also conclude that [the veteran's] pulmonary tuberculosis is inactive at this point in time. Pulmonary tuberculosis could have caused him to have some degree of restrictive lung disease, resulting in decreased lung volumes. However, his emphysema and significant pulmonary impairment is caused by cigarette smoking." Fee basis VA examination of the veteran was conducted in April 1999. The examiner noted that the veteran was diagnosed with PTB in 1945/1946 and that the veteran denied any history suggestive of active PTB but did have a history of weight loss. The veteran denied any history of night sweats or hemoptysis. He gave a history of coughing, without bringing up sputum. He reported his main problem as shortness of breath with minimal exertion. He denied chest pain. He reported a poor appetite and an inability to carry on with activities of daily living. The veteran reported that he had asthma attacks at least once a day, manifested by chest tightness and wheezing, for which he obtains relief with the use of an inhaler. At the time of examiner, the veteran appeared chronically ill. His lungs were emphysematous, rhonchi were head on auscultation, wheezes were noted and crepitations were heard in the lung bases, disappearing upon coughing. The impression was asthma; COPD and old pulmonary tuberculosis without any flaring of activity at that time. PFT was accomplished, revealing evidence of severe obstructive ventilatory impairment with significant improvement following bronchodilator therapy. The examiner concluded that the veteran had some degree of pulmonary impairment from hit PTB treated in the 1940s and that he had a history of shortness of breath on minimal exertion, secondary to severe obstructive disease. PFT results revealed an FVC 30 percent of predicted, an FEV-1 19 percent of predicted and an FEV-1/FVC of 42 percent of predicted. Post-bronchodilator therapy there was significant improvement in both FVC and FEV-1. In an addendum dated in May 1999, the examiner stated that the veteran's current symptoms were secondary to obstructive lung disease and that there was no evidence of restrictive or interstitial lung disease. The examiner further opined that chronic obstructive lung disease was not a result of previous pulmonary tuberculosis and that as such, the veteran's "pulmonary impairment is not service-connected." Pertinent Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2 (1999), which require the evaluation of the complete medical history of the veteran's condition. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). In accordance with the Schedule, a veteran who entitled to receive compensation for inactive, chronic PTB, on or before August 19, 1968, is entitled to a 100 percent evaluation for two years after the date of inactivity, following active PTB clinically identified during active service or subsequent thereto. Thereafter, a 50 percent rating is assigned during the period from the third through the sixth years after the date of inactivity, and a 30 percent rating is assigned during the period from the seventh through the eleventh years after the date of inactivity. The Schedule also provides a minimum 30 percent evaluation if far-advanced lesions were diagnosed at any time when the disease process was active. A minimum 20 percent rating is warranted for inactive, chronic PTB following moderately-advanced lesions, provided there is continued disability such as emphysema, dyspnea on exertion, impairment of health, etc. 38 C.F.R. §§ 4.89, 4.97, Diagnostic Codes 6722, 6724 (1994, 1997). The Schedule provides that the graduated 50 percent and 30 percent ratings and the permanent 30 percent and 20 percent ratings for inactive PTB are not to be combined with ratings for other respiratory disabilities. 38 C.F.R. § 4.97, Diagnostic Codes 6722, 6724, Note 2. Id. Changes were made to the Schedule, effective October 7, 1996, for a veteran who was entitled to receive compensation for PTB after August 19, 1968, for inactive, chronic PTB. The October 1996 revision of the respiratory system rating criteria did not alter the provisions for rating PTB where entitlement was originally established on or before August 19, 1968. Where a veteran was initially entitled to rating for PTB after August 19, 1968, 38 C.F.R. § 4.97, Diagnostic Code 6731, prior to October 7, 1996, provided for evaluation of residuals of inactive PTB as 100 percent for one year following inactivity, and also where were pronounced residuals: advanced fibrosis with severe ventilatory deficit manifested by dyspnea at rest, marked restriction of chest expansion with pronounced impairment of bodily vigor. A 60 percent evaluation was assigned for severe residuals; extensive fibrosis, severe dyspnea on slight exertion with corresponding ventilatory deficit confirmed by PFTs with marked impairment of health. As amended, regulations provide that chronic, inactive PTB residuals are rated dependent upon specific findings, as interstitial lung disease, restrictive lung disease, or, when obstructive lung disease is the major residual, as chronic bronchitis under 38 C.F.R. § 4.97, Diagnostic Code 6600. 38 C.F.R. § 4.97 Diagnostic Code 6731 (1999). Under the revised Schedule, a 100 percent rating is warranted for interstitial lung disease where the FVC is less than 50 percent of predicted, or; the DLCO (SB) is less than 40 percent predicted; or when maximum exercise capacity is less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; where there is cor pulmonale or pulmonary hypertension, or; where outpatient oxygen therapy is required. A 60 percent evaluation is warranted where the FVC is 50 to 64 percent of predicted; the DLCO (SB) is 40 to 55 percent of predicted; or the maximum exercise capacity is 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. 38 C.F.R. § 4.97, Diagnostic Codes 6825 to 6833 (1999). Under the revised Schedule, a 100 percent evaluation is warranted for restrictive lung disease or restrictive lung disease manifested by FEV-1 less than 40 percent of predicted value, or; the ratio of FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. A 60 percent rating is warranted where FEV-1 is 40 to 55 percent of predicted, or FEV-1/FVC is 40 to 55 percent of predicted, or DLCO (SB) is 40 to 55 percent of predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). 38 C.F.R. § 4.97, Diagnostic Codes 6600, 6840 to 6845 (1999). The Court has held that where a 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. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Analysis In general, allegations of increased disability are sufficient to establish well-grounded claims seeking increased ratings. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In the instant case, there is no indication that there are additional records which have not been obtained and which would be pertinent to the present claims. He has been examined by VA and has had opportunity to present evidence and argument in support of his claim. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran argues that he has increased difficulty breathing when walking and he has significant weakness, which he associates with his service-connected PTB. He argues that such warrants assignment of at least a 70 percent rating. After reviewing the entire evidence of record, the Board concludes that an evaluation in excess of 30 percent for residuals of PTB is not warranted under the Schedule. First, the Board notes that the competent and probative evidence of record reflects that the veteran's PTB became inactive in 1958, without evidence of subsequent re- activation of the tuberculous disease process. The final diagnosis during VA examination in January 1958 was moderately advanced, inactive, bilateral PTB, Stage V. Medical testing and examinations from 1981 to date fail to show re-activation of the disease process. Therefore, there is no basis to consider assignment of a 100 percent rating based on active PTB under 38 C.F.R. § 4.97, Diagnostic Code 6730 (1994, 1999). During the pendency of this appeal, the Schedule pertinent to rating respiratory disorders, including PTB, was revised, effective October 7, 1996, as set out in the pertinent laws and regulations, above. Since the veteran received disability compensation for PTB on and prior to August 19, 1968, the criteria applicable to the rating of this disability have not changed. Rather, the veteran warrants assignment of no more than 30 percent upon application of Diagnostic Codes 6722, 6724. Competent medical evidence is consistent in showing that the veteran's PTB, while active, was described as moderately advanced, and in showing that his PTB became inactive in 1958, without subsequent re- activation. Further, it has been more than 11 years from the date of such inactivity. A review of the relevant medical test results and examination evidence fails to show that the veteran was ever diagnosed with far-advanced lesions. Such facts warrant assignment of no more than a 20 percent evaluation. However, the veteran has been in receipt of a rating of at least 30 percent under 38 C.F.R. § 4.97, Diagnostic Code 6722 for more than 20 years and thus, the currently assigned 30 percent rating is protected from reduction. 38 C.F.R. § 3.951(b) (1999). The Board further notes that even if PTB were to be considered under the provisions of Diagnostic Code 6731 in effect since October 7, 1996, the competent evidence of record does not show that the veteran manifests PTB residuals sufficient to warrant assignment of the next higher rating of 60. The Board notes that the residuals attributable to inactive PTB are not severe; they do not include extensive fibrosis or severe dyspnea on slight exertion with corresponding ventilatory deficit confirmed by pulmonary function tests with marked impairment of health. X-ray examinations have not shown extensive fibrosis. The veteran has related increased dyspnea and reduced exercise tolerance, but the medical evidence shows this is due primarily to nonservice- connected disability and not to PTB residuals. Medical evidence reflects diagnoses of asthma and/or COPD related by medical professionals to the veteran's smoking, or otherwise opined not to be residual to PTB. The February 1997 VA examiner reported that the veteran had no signs or symptoms of PTB at the time of the examination. Rather, the VA examiner concluded that the veteran's residual impairment, which included shortness of breath, decreased lung volume and emphysema, was not attributable to the PTB. The physician concluded that the veteran's PTB was inactive, and that although PTB "could have caused... some degree of restrictive lung disease" the veteran's emphysema and significant pulmonary impairment were caused by cigarette smoking. Moreover, FEV-1, FEV-1/FVC and other PFT findings do not reflect that the residuals of PTB are severe enough to warrant an increased evaluation under the amended criteria. To the extent that some testing does indicate findings required for the 60 percent disability rating, there is competent medical evidence attributing such findings to disability not related to the veteran's PTB. The report of VA examination in April 1999, with its May 1999 addendum, is consistent in showing that the majority of the veteran's respiratory and pulmonary impairment is due to nonservice- related disability. That examiner specifically noted that the veteran's current symptoms were secondary to obstructive lung disease and that there was no evidence of restrictive or interstitial lung disease. The examiner further opined that chronic obstructive lung disease was not a result of previous PTB. The Board notes that the RO has denied service connection for bronchial asthma, COPD and emphysema. The veteran did not appeal those matters. When rating a disability, generally, the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation is to be avoided. 38 C.F.R. § 4.14 (1999). Thus, residuals attributable to the veteran's asthma, COPD and/or other pulmonary disease may not be considered in determining the appropriate disability evaluation for his service-connected PTB. In sum, under the criteria for the evaluation of inactive PTB first compensated prior to August 19, 1968, the competent evidence does not reflect re-activation of PTB, or other factors to warrant more than a 30 percent evaluation. Moreover, as set out above, residuals attributable to service-connected PTB are not severe, in that they do not cause extensive fibrosis, severe dyspnea on slight exertion with corresponding ventilatory deficit confirmed by PFTs with marked impairment of health; nor do residuals attributable to PTB cause an FVC of 50-to-64 percent predicted, or; DLCO (SB) of 40-to-55 percent predicted, or; maximum exercise capacity or oxygen consumption of 15-to-20 ml/kg/min oxygen consumption with cardiorespiratory limitation; or an FEV-1 of 40-to-55 percent predicted, or; an FEV-1/FVC of 40-to-55 percent. Accordingly, neither under current rating criteria or the pre-October 1996 rating criteria applicable to PTB first compensated after August 19, 1968, would the veteran warrant assignment of greater than a 30 percent rating. The Board concludes that the evidence is not evenly balanced or more nearly approximates the criteria for a higher rating, and the criteria for a rating in excess of 30 percent for service-connected residuals of PTB are not met. 38 C.F.R. §§ 4.89, 4.97, Diagnostic Codes 6722, 6724, 6731. ORDER An evaluation in excess of 30 percent for PTB is denied. JANE E. SHARP Member, Board of Veterans' Appeals