BVA9504094 DOCKET NO. 93-10 596 ) 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 (PTB), currently evaluated as 30 percent disabling. ATTORNEY FOR THE BOARD M. Reynolds, Associate Counsel INTRODUCTION The veteran served on active duty from March 1945 to June 1946. This appeal arises from a rating decision of February 1993 from the Manila, Philippines, Regional Office (RO), in which a 30 percent rating was continued for pulmonary tuberculosis. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred when it failed to evaluate his PTB in excess of 30 percent. He specifically notes that he experiences shortness of breath on light physical activity. 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 his claim for an increased rating for PTB. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. PTB is manifested primarily by mild obstruction with severe restrictive ventilatory defect. 3. Neither an exceptional nor unusual disability picture has been demonstrated that would render impractical application of the regular schedular standards. CONCLUSION OF LAW The criteria for an increased rating for PTB are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, Diagnostic Code 6721 (1994) REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a)(West 1991); that is, he has presented a claim that is plausible. He has not alleged that any records of probative value that may be associated with his claims folder and which have not already been sought are available. The Board accordingly finds that the duty to assist him, mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. Service connection for a disability classified as tuberculosis, pulmonary, reinfection type, far advanced, inactive was granted by the Manila, Philippines, RO by means of a rating decision dated in November 1952. The RO retroactively assigned a 100 percent rating from August 1949 to September 1954 ; a 50 percent rating from September 1954 to September 1958; and a 30 percent rating thereafter. This 30 percent evaluation is still currently in effect. The veteran contends that his PTB is of such severity as to warrant increased compensation. After a review of the record, however, the Board finds that his contentions are not supported by the evidence and that his claim fails. The severity of PTB is ascertained for VA rating purposes, by the application of the criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 Diagnostic Code 6721 (1993) (Schedule). Under these criteria, the rating currently in effect contemplates inactive PTB with far advanced lesions diagnosed at any time while the disease process was active. A rating greater than that currently in effect is appropriate when PTB becomes active. The Board notes that the veteran is of the belief that 38 C.F.R. Part 4 Diagnostic Code 6731 is applicable with regard to the adjudication of his claim for an increased rating. However, 38 C.F.R. § 4.96(b) stipulates: "Public Law 90-493 repealed section 1156 of title 38, United States Code which had provided graduated ratings for inactive tuberculosis. The repealed section, however, still applies to the case of any veteran who on August 19, 1968, was receiving or entitled to receive compensation for tuberculosis..." This provision further stipulates: "For application in rating cases in which the protective provisions of Pub. L. 90-493 apply the former evaluations pertaining to pulmonary tuberculosis are retained in § 4.97". The evidence clearly indicates that the veteran was entitled to receive, and was receiving compensation for tuberculosis prior to August 19, 1968. In a rating decision dated in January 1951, the RO initially granted service connection for PTB, effective retroactively from August 1949. Therefore, Diagnostic Code 6721 is the appropriate section for review of the veteran's claim and not Diagnostic Code 6731, which would have been appropriate had the veteran been initially entitled to compensation after August 19, 1968. The criteria for increased compensation for PTB under the dictates of Diagnostic Code 6721 are not satisfied. As mentioned above, an increased rating would be warranted if the veteran's PTB is determined to be active. The most recent report of a Department of Veterans Affairs(VA) examination dated in October 1992 and subsequent TBB review report, identified the veteran as having PTB minimal, bilateral, chronic with pleuroparerchymal disease inactive stage IV. Similarly, the TBB review report prepared in January 1992, following a November 1991 VA examination, determined that the veteran PTB to be inactive stage IV. The Board acknowledges that the veteran has submitted an X-ray report from the Lung Center of the Philippines, the report of the pulmonary function test from the Lung Center of the Philippines, and a statement from a chest specialist. However, none of this evidence demonstrates that the veteran's PTB has become active since it was arrested in 1952. Therefore the Board must conclude that the preponderance of the evidence is against the veteran's claim for an increased rating for PTB. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 Diagnostic Code 6721(1994). In addition, the evidence does not demonstrate that this disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1)(1993). ORDER An increased rating for pulmonary tuberculosis is denied. 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.