BVA9504100 DOCKET NO. 92-01 815 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an increased rating for pulmonary tuberculosis, minimal, inactive, with bronchiectasis, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran's active military service extended from May 1945 to July 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. That rating decision, in part, continued a 10 percent rating for pulmonary tuberculosis, minimal, inactive, with bronchiectasis, that had been in effect since March 1966. In November 1992, the Board remanded the case for VA medical records, examination of the veteran and further adjudicative action. The requested development was completed. In a rating decision in May 1994, the RO granted a total and permanent disability rating for pension purposes and continued the 10 percent rating for pulmonary tuberculosis, minimal, inactive, with bronchiectasis. The Board now proceeds with its review of the appeal. In June 1994, the veteran expressed disagreement with a denial of service connection for Paget's disease. However, since that issue has not been developed for appellate review, attention of the RO is called for action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in denying his claim of entitlement to an increased rating for pulmonary tuberculosis, minimal, inactive, with bronchiectasis. He asserts that his service-connected disability is more severely disabling than currently evaluated. Specifically, he states that he experiences recurrent respiratory infections. He also contends that he has occasional night sweats, two pillow orthopnea, occasional pedal edema, a non-productive daily cough, paroxysmal nocturnal dyspnea four to five times per day and a progressive shortness of breath. He alleges that he can climb only one flight of stairs, can walk only two blocks, and is unable to run. Consequently, he contends that he is entitled to an increased disability evaluation. 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 the evidence is against the veteran's claim of entitlement to an increased disability rating for pulmonary tuberculosis, minimal, inactive, with bronchiectasis. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's pulmonary tuberculosis has been inactive since March 1955. 3. The veteran has been entitled to disability benefits for pulmonary tuberculosis since 1947. 4. The veteran's pulmonary tuberculosis is manifested by complaints of occasional night sweats, two pillow orthopnea, occasional pedal edema, a non-productive daily cough, paroxysmal nocturnal dyspnea four to five times per day and a progressive shortness of breath. 5. The objective evidence includes diminished breath sounds bilaterally without rales or wheezes, a trace of pedal edema and pleural parenchymal scarring involving the lingula and left upper lobe with nodular densities of the left lung. 6. The veteran's service-connected respiratory disorder is manifested by not more than mild bronchiectasis and does not result in moderate impairment. 7. The veteran's service connected disability does not present an exceptional or unusual disability picture rendering impracticable the application of the regular schedular standards that would have warranted referral of the case to the Director of the Compensation and Pension Service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for pulmonary tuberculosis, minimal, inactive, with bronchiectasis have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.96, 4.97, Part 4, Codes 6601, 6723, 6731(1994). 2. Failure of the RO to consider or document its consideration of an extraschedular rating and the failure to refer the case to the Director of the Compensation and Pension Service is no more than harmless error. 38 C.F.R. § 3.321(b)(1) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is to say that he has presented a claim which is plausible. VA has assisted the veteran as much as it can in the development of his claim. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of disease and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R § 4.7 (1994). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1994). The veteran's claims folder contains his service medical records, private medical records, VA medical records, and VA examination reports. The veteran's service medical records show that during service in November 1946, he was found to have pleuritis, serofibrinous, acute, left, cause undetermined, probably tuberculosis. Due to this disability, he was determined to be unfit for further service and was discharged from service in July 1947. According to the records on file, in a July 1947 rating decision, the RO granted service connection for pleuritis, serofibrinous, acute, probably tuberculosis in origin, and assigned a 50 percent disability rating under 38 C.F.R. Part 4, Code 6810. The record shows that the veteran continued to receive treatment from the VA. He underwent a VA examination in September 1947. It was reported that there was no evidence of tuberculosis. In the examiner's opinion the veteran was to be classified as non- tuberculous. The final diagnosis was pleurisy, chronic, left, non-tuberculous. On the basis of all the evidence then of record, the RO assigned a 10 percent rating for pleurisy, non- tuberculous in January 1948. He was re-examined by the VA in December 1948 but no active tuberculosis was found. The evidence notes that the veteran was subsequently treated and hospitalized on several occasions for acute exacerbations of pleuritis that cleared without complications. In January 1954, the veteran was hospitalized and diagnosed as having chronic pulmonary tuberculosis, minimal, symptoms slight, active and chronic tuberculous pleurisy. It was the opinion of the examiner that the episodes of pleurisy in the past had always been on a tuberculous basis, including the episode during service. In March 1954, the RO granted the veteran service connection for pulmonary tuberculosis, minimal, active, and assigned a temporary total rating under the provisions of Code 6703, effective from January 1954. The veteran was once again hospitalized from February to March 1955. At this time, concentrations for two sputa for tubercle bacilli were negative. A chest x-ray was interpreted as stable. He was diagnosed as having pulmonary tuberculosis, chronic, minimal, inactive and acute pleurisy, left, etiology unknown. By rating action of April 1955, the veteran's pulmonary tuberculosis was rerated under Code 6723 as follows: 100 percent from January 1954 to March 1957, 50 percent from March 1957 to March 1961, 30 percent from March 1961 to March 1966, and noncompensable from March 1966 forward. These reductions were based on the showing that the veteran's pulmonary tuberculosis was in clinically arrested status as of the date of inactivity of the condition, as shown by the stable x-ray and negative sputa in March 1955. The veteran was hospitalized in July 1955. On discharge, he was diagnosed as having chronic pulmonary tuberculosis, minimal, arrested, and bronchiectasis, cylindrical, right lower lobe, with hemoptysis. In September 1955, the RO granted service connection for bronchiectasis secondary to and associated with pulmonary tuberculosis and assigned a 10 percent rating. The veteran's condition was rerated as follows under Code 6723: 100 percent from January 1954 to March 1957, 50 percent from March 1957 to March 1961, 30 percent from March 1961 to March 1966, and 10 percent from March 1966 forward. The 10 percent evaluation from March 1966 forward was based upon the additional symptoms associated with bronchiectasis. The veteran was re-hospitalized from September to November 1958. Six sputa concentrates were negative for acid-fast bacilli. On discharge, he was diagnosed as having chronic pulmonary tuberculosis, minimal, inactive for four years and eleven months. He was also under observation for bronchiectasis, but no disease was found. Also of record are VA outpatient treatment notes dated from January to July 1975. In July 1975, the veteran complained of a productive cough with copious sputum at any time of day and hemoptysis. His chest was clear on examination with normal heart sounds. An x-ray indicated that there was no new process with respect to pulmonary tuberculosis. Private medical records dated in July 1975 also contain complaints of hemoptysis and dyspnea on one flight of stairs. However, the veteran denied chest pain, orthopnea, palpitations, chills, fever, night sweats and weight loss. On examination it was noted that there was a slight decrease in breath sounds at the left base. Otherwise, his chest was clear to percussion and auscultation. The impression was tuberculosis, treated, by history and hemoptysis. The veteran was afforded a VA examination in December 1975. The examiner diagnosed residuals of pulmonary tuberculosis with bronchiectasis, minimal, inactive, with dyspnea on exertion and hills. A pulmonary function test was interpreted as within normal limits, in spite of some restrictive disease. The examiner indicated that the veteran's flow rates were low due to stiffness of the lungs rather than bronchial obstruction. Dyspnea was shown on hills and stairs. On the basis of the foregoing evidence, the RO confirmed the 10 percent rating in February 1976. The veteran submitted a claim for an increased rating in October 1990. In support of his claim, he submitted private medical records dated from January 1987 to October 1990. A report of treatment in December 1989 indicated that he was evaluated complaining of congestion, coughing and a sore throat. His lungs were noted to be clear to auscultation. In October 1990, he was treated for complaints of body aches and a nagging pain in the left rib area which had persisted for two weeks. On examination, he had a regular respiratory rate. His lungs revealed an occasional coarse rhonchi and there appeared to be a pleural friction rub in the left lower lung. He was assessed as having bronchitis and pleurisy. He was treated with medication. On follow-up examination later that month, there was no improvement and the veteran reported that his throat was scratchy. The assessment was bronchitis and an upper respiratory infection. In December 1990, the veteran was afforded a VA examination. He complained of recurrence of his upper respiratory infection with a productive cough with a grayish or yellowish sputum. He also complained of a pulling pain in his left lower chest cage. The examiner noted a history of tuberculosis and reported that the veteran had not had a recurrence of the condition and has had annual x-rays and surveillance. He also noted that he had an x- ray one month prior which showed left pleural parenchymal disease, but no accumulation of pleural effusion. The examiner also reviewed a pulmonary function test dated in August 1990 which showed early airway obstruction. He reported that the veteran was not in any acute distress and did not cough during his entire visit. Chest expansion was bilaterally diminished and breath sounds were clear bilaterally but distant, especially over his left posterior chest and over the bases. There was flatness to percussion over the left base compared with the right base. Fremitus was diminished over the left chest as compared with the right chest, especially posteriorly. The trachea was on the midline and the pharynx appeared normal without inflammation. The nose revealed no evidence of acute congestion and the turbinates were boggy but there were no collections of mucus or secretions in the nose. His heart had regular sinus rhythm with a second aortic snap. The examiner diagnosed status post medical treatment for pulmonary tuberculosis, healed, with residuals of pleural scarring on the left, early small airway obstruction by pulmonary function tests, and bronchitis. In January 1991, the RO denied entitlement to an increased rating on the grounds that the evidence did not show that tuberculosis was currently active, no significant coughing was observed during the examination, and airway obstruction was no more than mild. Thereafter, the veteran submitted VA outpatient treatment records dated from July 1982 to December 1990 which show treatment primarily for unrelated disorders. However, a review of these records indicates that he occasionally complained of chest discomfort, a productive cough with sputum, post-nasal drip, throat irritation and sinus congestion. His cough was noted to be worse in the evenings. There were no complaints of dyspnea. The etiology of these complaints was not established, but various assessments of record included probable post-viral cough with no evidence of pneumonia, persistent post nasal drip, acute, chronic bronchitis, bronchiectasis and asthma. An assessment in December 1992 stated that he clearly had bronchitis. Significantly, tuberculosis was not shown to be active. On the basis of the findings in these records, the RO continued the 10 rating for pulmonary tuberculosis, minimal, inactive, with associated bronchiectasis in March 1991. Pursuant to the Board's remand, additional VA medical records were obtained dated from June 1986 to January 1993. The veteran's complaints consisted essentially of a productive cough which occurred mostly at night and of sinus pressure. The records contained assessments of sinus disease and congestion; post nasal drip; upper respiratory infections, probably viral in origin; and bronchitis, probably bacterial or viral in origin. His lungs were consistently reported to be clear and there was no evidence of recurrence of tuberculosis. Pedal edema was noted and presumed to be in relation to medication the veteran was taking for an unrelated condition. At his most recent VA examination, which was conducted in June 1993, the veteran reported that he had no respiratory problems from 1950 to 1990. Since 1990, he claimed that he has had recurrent respiratory infections which have increased in the past year and one half. He also contended that he had occasional night sweats, two pillow orthopnea, occasional pedal edema, a non-productive daily cough, paroxysmal nocturnal dyspnea four to five times per day and a progressive shortness of breath. In particular, he alleged that he could climb only one flight of stairs, walk only two blocks, and was unable to run. He denied hemoptysis. On examination, it was noted that his extremities revealed a trace of pedal edema. The examiner also noted diminished breath sounds bilaterally without rales or wheezes. There was no cyanosis or clubbing. According to the pulmonary function test report, dyspnea was noted on history to occur after any exertion, including talking and dressing. The pulmonary function test showed no obstruction, normal lung volumes, and elevated diffuse capacity of carbon monoxide (DLCO). A chest x-ray indicated pleural parenchymal scarring involving the lingula and left upper lobe with nodular density. The right lung was clear. Compared to the August 1990 x-ray, there was no change in the appearance of the left lung. The veteran was diagnosed as having pulmonary tuberculosis, inactive, with a history of bronchiectasis. Also of record are private medical reports dated in July and September 1993. In July 1993, Munni Setty, M.D. diagnosed the veteran with probable Paget's disease and suggested that he should be kept in mind for bone tuberculosis, although there were no clinical findings to support such a diagnosis at present. A chest x-ray dated in September 1993 indicated a stable appearing chronic change in the left mid lung, including calcification and pleural parenchymal scar which was unchanged from past studies and was compatible with old tuberculosis. No other infiltrates in the lungs were identified. There was no evidence of acute process. Where entitlement to service connection for pulmonary tuberculosis is established on or before August 19, 1968, after 11 years or more of inactivity, a minimum rating of 30 percent will be assigned following far advanced lesions diagnosed at any time while the disease process was active and a 20 percent rating will be assigned following moderately advanced lesions, provided there is continued disability, emphysema, dyspnea on exertion, impairment of health, etc. Otherwise, the residuals will be rated as noncompensable. 38 C.F.R. §§ 4.96 and 4097 Code 6723 (1994). The record of this case shows that while the veteran was entitled to service connection before August 1968, the moderately advanced or far advanced lesions required for 20 percent rating under this code have never been demonstrated in this case. The current 10 percent rating could also be assigned under 38 C.F.R. §§ 4.96, 4.97, Code 6731 (1994) if the disability is definitely symptomatic with pulmonary fibrosis and moderate dyspnea on extended exertion. The next higher rating, 30 percent, contemplates a moderate disability, with considerable pulmonary fibrosis and moderate dyspnea on slight exertion, confirmed by pulmonary function tests. In this case, examination findings have not been consistent whit a moderate disability. The recent x-rays have revealed some residuals, including pleural parenchymal scarring involving the lingula and left upper lobe with nodular densities of the left lung. However, there is no evidence of considerable pulmonary fibrosis of the lungs as a whole. No other infiltrates have been identified and the right lung has been consistently reported as clear. Moreover, a moderate dyspnea has not been confirmed by pulmonary function tests. At the time of the June 1993 VA examination, the reports of dyspnea were noted based on history given by the veteran. The pulmonary function test showed no obstruction and normal lung volumes. For these reasons, the Board concludes that although the veteran has been recently symptomatic, the residuals attributable to tuberculosis are not moderate in degree, and therefore, a rating in excess of 10 percent is not warranted under Code 6731. The 10 percent evaluation assigned in March 1966 was based upon residuals of tuberculosis, including associated bronchiectasis. A 10 percent evaluation is assigned when bronchiectasis is mild with paroxysmal cough and mostly night or morning purulent expectoration. When bronchiectasis is moderate with a persistent paroxysmal cough at intervals throughout the day, abundant purulent and fetid expectoration and slight, if any, emphysema or loss of weight, a 30 percent evaluation is assigned. 38 C.F.R. § 4.97, Part 4, Code 6601 (1994). There is no current bronchiectasis with a persistent paroxysmal cough at intervals throughout the day, abundant purulent and fetid expectoration and slight, if any, emphysema or loss of weight. Therefore, pursuant to Code 6601, a rating higher than 10 percent is not warranted. This case does not present 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. 38 C.F.R. § 3.321(b)(1)(1994). Any failure of the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. ORDER An increased evaluation for pulmonary tuberculosis, minimal, inactive, with bronchiectasis is denied. JOAQUIN AGUAYO-PERELES 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.