Citation Nr: 0001823 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 97-32 053 A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to an increased disability rating for chronic pulmonary tuberculosis with a lobectomy of the right upper lobe and with chronic obstructive pulmonary disease (COPD), currently evaluated as 60 percent disabling. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for cardiovascular disease and cerebrovascular disease secondary to service- connected chronic pulmonary tuberculosis with a right upper lobectomy and COPD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ralph G. Stiehm, Counsel INTRODUCTION The veteran had active service from March 1952 to February 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In January 1999, the Board remanded this case for further development. This case is once again before the Board. FINDINGS OF FACT 1. Tuberculosis has been inactive since January 1960. 2. Chronic pulmonary tuberculosis with a lobectomy of the right upper lobe and with chronic obstructive pulmonary disease (COPD) is characterized by FEV-1 of no less than 66 percent of the predicted amount, FEV-1/FVC of no less than 86 percent, and DLCO (SB) of no less than 113 percent of predicted amount; the veteran's disability results in mild obstructive and restrictive defects and does not result in shortness of breath; the veteran's disability is not characterized by right heart failure, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure, or need of oxygen therapy. 3. In December 1989, the Board denied service connection for a heart disorder with hypertension, headaches, and a leg disorder. 4. In April 1993, the RO denied service connection for a heart disorder, based upon lack of new and material evidence to reopen the earlier Board decision; the RO notified the veteran of that decision, and the veteran did not initiate an appeal. 5. Evidence associated with the claims file since the June 1993 decision is cumulative of previously considered evidence. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 60 percent for chronic pulmonary tuberculosis with a lobectomy of the right upper lobe and with COPD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.97, Diagnostic Code 6604, 6723 (1999). 2. The evidence received since April 1993 is not new and material, and the veteran's claim for secondary service connection for cardiovascular disease and cerebrovascular disease may not be reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.156, 20.1103, 20.1105 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Chronic pulmonary tuberculosis with a lobectomy of the right upper lobe and with chronic obstructive pulmonary disease is evaluated as 60 percent disabling under diagnostic codes 6723 and 6604, pertaining to tuberculosis, minimal, and chronic obstructive pulmonary disease, respectively. A total evaluation for tuberculosis contemplates either active disease or up to two years of inactivity following active tuberculosis. A lower evaluation of 50 percent contemplates a period of four to six years of inactivity. See 38 C.F.R. § 4.97, Diagnostic Code 6723. Chronic obstructive pulmonary disease warrants a 60 percent evaluation, if characterized by FEV-1 of 40 to 55 percent predicted; FEV-1/FVC of 40 to 55 percent; DLCO (SB) of 40 to 55 percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A total evaluation contemplates FEV-1 of less than 40 percent predicted; FEV-1/FVC of less than 40 percent; DLCO (SB) of less than 40 percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac respiratory limitation); cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); episodes of acute respiratory failure; or need of outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6604. Service connection was granted for tuberculosis in an October 1959 rating decision that noted the presence of positive findings within a year of the veteran's separation from service and active tuberculosis, characterized as minimal, that improved following a right upper lobectomy in April 1959. The veteran's disability was evaluated as totally disabling at that time. An x-ray in October 1959 also revealed minimal, advance, active pulmonary tuberculosis, although physical examination at that time revealed an impression of inactive pulmonary tuberculosis. Examination in January 1960 revealed the veteran's pulmonary tuberculosis to be inactive. Thereafter, in a January 1960 rating decision, the RO reduced the rating for tuberculosis from 100 percent to 50 percent, effective January 1962, and from 50 percent to 30 percent, effective January 1966. The 30 percent evaluation for the veteran's disability has remained unchanged, until increased to 60 percent in the course of the current appeal. The May 1999 rating decision, which effected that change also reflects expansion of the veteran's service connected disability to include chronic obstructive lung disease and a finding that the veteran's tuberculosis has been inactive since January 1960. Evidence associated with the claims file does not document active tuberculosis since the finding in January 1960 that tuberculosis was inactive, and a report of a March 1999 VA examination reflects a notation that tuberculosis is inactive and healed. There is, therefore, no basis for a higher evaluation for tuberculosis, as such. The veteran has undergone VA examinations in March 1997, March 1999, and July 1999. Pulmonary function tests administered in March and July 1999 reflect results inconsistent with a higher evaluation. The veteran has not experienced active tuberculosis in many years. In March 1999, FEV-1 was 66 percent of the predicted value and FEV-1/FVC was 89 percent. In July 1999, a pulmonary function test revealed FEV-1 of 73 percent of predicted amount, FEV-1/FVC of 86 percent, and DLCO (SB) of 113 percent of predicted amount. Although the examination reports do not reflect findings concerning maximum exercise capacity, in March 1999 mixed obstructive and restrictive defects, which were attributed to scarring and possible changes from prior pulmonary tuberculosis, were characterized as mild. In July 1999, an examiner characterized the pulmonary function test as revealing mild restriction and, adding that the veteran's service-connected condition did not make the veteran unemployable, indicated that the veteran's complaints of shortness of breath were the result of obesity, deconditioning, longstanding hypertension, cardiomegaly and diastolic dysfunction. There is no indication of right heart failure, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure, or need of oxygen therapy. Although the veteran apparently suffers from hypertension, this has not been associated with the veteran's pulmonary disorder, and the conclusions of the July 1999 examiner, which appear to associate this disorder with diastolic dysfunction, as well as cardiomegaly, read together with a conclusion rendered in March 1997 that a history of a right cerebrovascular accident had nothing to do with the veteran's history of tuberculosis, suggest that the veteran's hypertension, as well as the associated heart and vascular problems, are unrelated to his service-connected respiratory disorder. The veteran is more than adequately compensated for the symptomatology currently associated with his disability, and a higher evaluation is unwarranted. II. New and Material Evidence The veteran seeks service connection for cardiovascular and cerebrovascular disease, secondary to service-connected chronic pulmonary tuberculosis. Service connection may be granted for a disorder that was incurred in or aggravated during the veteran's active duty service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Certain diseases, including cardiovascular and heart disease, are presumed to have been incurred in service if manifested within a year of separation from service to a degree of 10 percent or more. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, a disease which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. However, in December 1989, the Board denied service connection for a heart disorder with hypertension, headaches, and a leg disorder. In April 1993, the RO denied service connection for a heart disorder, based upon lack of new and material evidence to reopen the earlier Board decision. The RO notified the veteran of that decision, and the veteran did not initiate an appeal. The December 1989 Board decision and the April 1993 RO decision are both final and, as such, neither decision may be reopened without "new and material evidence." 38 U.S.C.A. §§ 5108, 7104(b), 7105; see Godfrey v. Brown, 7 Vet. App. 398, 405 (1995); Moray v. Brown, 5 Vet. App. 211, 213 (1993). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Elkins v. West, 12 Vet. App. 209 (1999). This standard has not been met. At the time of the December 1989 Board decision, the Board had before it service medical records, as well as post- service medical records. The Board observed that although the latter documented hypertension, arrhythmia, and enlargement of the heart, these disorders were not present until a number of years after service. In denying service connection for a heart disorder, the Board observed that evidence associated with the claims file failed to reflect that a heart disorder had its onset in service or that a heart disorder, notwithstanding the veteran's contentions to the contrary, was causally related to the veteran's service- connected pulmonary disorder. Thereafter, the veteran submitted additional treatment records documenting diagnoses that, again included, hypertension. In declining to reopen the veteran's claim for service connection for a heart condition, the RO, in April 1993, observed that evidence submitted since the prior Board decision was not new and material, because it failed to suggest that the veteran had a heart condition incurred during service or secondary to tuberculosis and a lung resection. At issue, therefore, has been not whether the veteran suffered from a current heart or vascular disorder. Instead, the deficiency in the veteran's claim has been the absence of competent evidence linking the current disorder to service or to another service-connected disability. Since the time of the April 1993 determination, additional evidence has been associated with the claims file. This evidence documents additional diagnoses of heart and vascular diseases. A February 1997 report, for instance, reflects diagnoses of hypertension and a left cerebrovascular accident in 1996. A March 1997 examination report reflects a history of right cerebrovascular accident, a March 1999 examination report reflects the presence of mid cardiomegaly, and a July 1999 examination report reflects diagnoses of, among other things, hypertension, diastolic dysfunction, and right cerebrovascular accident. However, no evidence associated with the claims file since April 1993 suggests that a heart disease or a vascular disease had its onset in service, is secondary to a service-connected lung disability, or is otherwise etiologically related to a disease or injury in service. In fact, the March 1997 examiner's report reflects a conclusion which explicitly rejects the possibility of any etiological relationship between a history of a cerebrovascular accident and the veteran's history of tuberculosis. As such, additional evidence submitted since April 1993 is cumulative of evidence present prior to that date and is not new and material. ORDER A claim for an increased evaluation for chronic pulmonary tuberculosis with a chronic lobectomy of the right upper lobe and with chronic obstructive pulmonary disease, currently evaluated as 60 percent disabling, is denied. New and material evidence not having been submitted to reopen a claim for secondary service connection for cardiovascular disease and cerebrovascular disease, service connection for that disorder remains denied. R. F. WILLIAMS Member, Board of Veterans' Appeals