Citation Nr: 0002758 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 96-31 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased rating for pulmonary tuberculosis (PTB), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from August 1951 to May 1953, and from July 1953 to February 1955. This issue comes before the Board of Veterans' Appeals (Board) from a November 1995 rating decision by the Department of Veterans Affairs (VA) Jackson, Mississippi, Regional Office (RO). In October 1998, the Board denied service connection for carcinoma of the right lung and chronic obstructive pulmonary disease (COPD). The Board, in February 1998 and October 1998, remanded the issue in appellate status for additional development of the evidence as well for due process considerations. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The PTB, far advanced, has remained inactive since the 1950s . 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 (West 1991); 38 C.F.R. §4.97, Diagnostic Codes 6701, 6721, (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board initially finds that the veteran has presented a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). That is, he has presented a claim which is plausible. The Board also finds that all relevant evidence has been obtained to the extent possible by the RO, and there is no further duty to assist the veteran in the development of facts pertinent to his claim for an increased evaluation for pulmonary tuberculosis. In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (1999). However, 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2 (1999), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). 38 C.F.R. § 4.1 (1999) requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition. The provisions of 38 C.F.R. § 4.2 (1999) require that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 (1999) provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory, and prognostic data required for ordinary medical classification, a description of the effects of the disability upon the person's ordinary activity. 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 veteran must be applied. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Consequently, the Board will consider both the current and prior rating criteria to determine which version is more favorable to the veteran's claim for increase. Public Law 90-493 repealed section 356 of title 38, United States Code which 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. 38 C.F.R. § 4.89 (1999). The ratings applicable for veterans entitled to compensation on August 19, 1968, are as follows: For 2 years after date of inactivity, following active tuberculosis, which was clinically identified during service or subsequently, 100 percent. Thereafter, for 4 years, or in any event, to 6 years after date of inactivity, 50 percent. Thereafter, for 5 years, or to 11 years after date of inactivity, 30 percent. Thereafter, in the absence of a schedular compensable permanent residual, 0 percent. The following rating criteria, and diagnostic codes are applicable to ratings for pulmonary tuberculosis where entitlement existed on August 19, 1968: 6701 Tuberculosis, pulmonary, chronic, far advanced, active, 100 percent; 6702 Tuberculosis, pulmonary, chronic, moderately advanced, active, 100 percent; 6703 Tuberculosis, pulmonary, chronic, minimal, active, 100 percent; 6704 Tuberculosis, pulmonary, chronic, active, advancement unspecified, 100 percent; 6721 Tuberculosis, pulmonary, chronic, far advanced, inactive; 6722 Tuberculosis, pulmonary, chronic, moderately advanced, inactive; 6723 Tuberculosis, pulmonary, chronic, minimal, inactive; 6724 Tuberculosis, pulmonary, chronic, inactive, advancement unspecified. General Rating Formula for Inactive Pulmonary Tuberculosis: For two years after date of inactivity, following active tuberculosis, which was clinically identified during service or subsequently, a rating of 100 percent is provided. Thereafter for four years, or in any event, to six years after date of inactivity, a rating of 50percent is provided. Thereafter, for five years, or to eleven years after date of inactivity, a rating of 30 percent is provided. Following far advanced lesions diagnosed at any time while the disease process was active, minimum, 30 percent rating is provided. Following moderately advanced lesions, provided there is continued disability, emphysema, dyspnea on exertion, impairment of health, etc, 20 percent rating is provided. Otherwise, a noncompensable rating is provided. 38 C.F.R. Part 4, Code 6731 provides ratings for chronic inactive pulmonary tuberculosis where entitlement to service connection is effective after August 19, 1968. Effective prior to October 7, 1996, a noncompensable evaluation would be assigned for healed lesions with minimal or no symptoms. If the residuals were definitely symptomatic with pulmonary fibrosis and moderate dyspnea on extended exertion, the disability would be rated at 10 percent. A 30 percent rating would be assigned for moderate residuals with considerable pulmonary fibrosis and moderate dyspnea on slight exertion, confirmed by pulmonary function tests. A 60 percent rating required severe residuals with extensive fibrosis, severe dyspnea on slight exertion with corresponding ventilatory deficit confirmed by pulmonary function tests with marked impairment of health. The 100 percent rating required pronounced residuals: 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. Part 4, Code 6731 (1996). Effective October 7, 1996, 38 C.F.R. Part 4, Code 6731 provides that chronic, inactive pulmonary tuberculosis will be rated depending on the specific findings, with residuals rated as interstitial lung disease, restrictive lung disease, or, when obstructive lung disease is the major residual, as chronic bronchitis. The general rating formula for interstitial lung disease (diagnostic codes 6825 through 6833) is as follows: Forced Vital Capacity (FVC) less than 50 percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; requires outpatient oxygen therapy: 100percent,- FVC of 50 to 64 percent predicted, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation: 60 percent; FVC of 65 to 74 percent predicted, or; DLCO (SB) of 56 to 65 percent predicted: 30percent; FVC of 75 to 80 percent predicted, or; DLCO (SB) of 66 to 80 percent predicted: 10 percent; Where the requirements for a 10 percent rating are not met: noncompensable. Diagnostic Codes 6825-6833, effective October 7, 1996. The general rating formula for restrictive lung disease (diagnostic codes 6840 through 6845) is as follows: FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (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: 100 percent; FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit): 60 percent; FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56 to 65 percent predicted: 30percent; FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66 to 80 percent predicted: 10 percent; Where the requirements for a 10 percent rating are not met: noncompensable. 38 C.F.R. Part 4, including 4.31 and Codes 6840-6845, effective October 7, 1996. Chronic bronchitis will be rated as follows: Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (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: 100 percent; FEV- 1 of 40 to 5 5-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit): 60percent; FEV-1 of 56 to 70 percent predicted, or; FEV- 1/FVC of 56 to 70 percent, or; DLCO (SB) 56 to 65 percent predicted: 30 percent; FEV- I of 71 to 8 0 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66 to 80 percent predicted; 10 percent; Where the requirements for a 10 percent rating are not met: noncompensable. 38 C.F.R. Part 4, including 4.31 and Code 6600, effective October 7, 1996. Service connection for pulmonary tuberculosis, characterized as far advanced, active, was initially granted by means of a rating decision dated in May 1955. A 100 percent rating was assigned at that time. Following a September 1956 VA special chest examination, the RO informed the veteran by letter dated in January 1957, that as his tuberculosis was then shown to be of an inactive nature, the 100 percent rating previously assigned would be continued to September 19, 1958, and that a 50 percent rating had been assigned from September 20, 1958, to September 19, 1962. Thereafter, from September 20, 1962, the veteran was informed that he would receive the statutory award for arrested tuberculosis (305). The veteran was hospitalized at a VA facility from December 1958 to March 1959 for hemoptysis. A chest x-ray reexamination showed no change in the minimal linear fibrotic scarring in the right upper lobe when compared to the previous study. Sputum examinations by direct culture and smear were negative for acid fact bacilli. The diagnoses were undiagnosed disease manifested by hemoptysis, and PTB, chronic, minimal, (3 months). In October 1995, the veteran submitted a claim for an increased rating for his service-connected PTB. The RO in November 1995, confirmed the 30 percent rating currently in effect. The veteran subsequently perfected an appeal to the November 1995 rating action. An October 1995 VA hospitalization discharge summary shows that the veteran was diagnosed with squamous cell carcinoma of the right lower lung. It was noted that a right thoracotomy and right lower lobectomy was performed. Subsequently, the veteran received treatment at a VA facility for several disorders. A VA pulmonary examination was conducted in September 1996. The clinical history indicated that the veteran had a myocardial infarction in March 1995. He underwent a lobectomy in October 1995 for carcinoma of the right lung. He complained of exertional dyspnea and a chronic cough. Chest X-rays showed post-surgical changes with scarring on the right, otherwise normal chest. Pulmonary function test studies (PFT) showed mild obstructive lung disease. The diagnoses were pulmonary tuberculosis, remote, arrested as of March or April 1955, carcinoma of the right lung post lobectomy status, and chronic obstructive pulmonary disease related to pulmonary tuberculosis or carcinoma of the right lung post lobectomy status with mild obstructive disease on PTF. A VA pulmonary examination was conducted in May 1998. The veteran indicated that he smoked 3 packs of cigarettes a week for 50 years. The veteran indicated that he could walk about 50-75 feet at his own speed before having to stop due to breathlessness. He added that he had occasional sputum production and no hemoptysis. He also indicated that he experienced some wheezing and chest tightness with exertion. The veteran also reported having a good appetite and that his weight was stable. He stated that his dyspnea was getting worse. The examination showed that the veteran weighed 209 pounds. His thorax had good expansion bilaterally. A right lateral thoracotomy scar was well healed. His lungs were clear to auscultation. There were no dull areas evident to percussion. The examiner indicated that the veteran had a history of PTB, a resected squamous cell carcinoma, and a severe ventilatory impairment best described a COPD. PTFs showed (pre-drug) a Forced Vital Capacity (FVC) of 1.36, 35 percent of predicted; Forced Expiratory Volume in one second (FEV1)of 1.00, 37 percent of predicted, and FEV1 to FVC (FEV-1/FVC) of 73, 108 percent of predicted. The impression was severe mixed ventilatory impairment. The diagnosis was history of active pulmonary tuberculous, treated, inactive with normal chest X-ray and CT [computed tomography] examination (except for post-thoracotomy changes), COPD with volume loss due to thoracotomy with functions that are severely impaired but improve with inhaled bronchodilator. The examiner opined that pulmonary tuberculosis was unlikely to have contributed to the veteran's current ventilatory impairment or his squamous cell carcinoma. The examiner added that if the lungs were heavily scarred due to the PTB infection then it would be more likely on both counts. The examiner continued that it was a reasonable medical probability that smoking was the major contributor for both the lung impairment and the squamous cell carcinoma. It was stated that the fact the veteran had a right lower lobectomy which removed about 20% to 25% of his functioning lung tissue contributed to his measured ventilatory impairment. The contribution of the thoracotomy was difficult to quantitate. One would reasonably expect a reduction of the PTFs comparable to the amount of tissue removed. The examiner concluded by indicating that the PTB was unlikely to be related to the veteran's carcinoma or COPD. The veteran continued to receive treatment had a VA outpatient clinic during 1998 for several disorders. A VA chest X-ray report dated in August 1998 shows that the chest appeared stable. To summarize the veteran's PTB , classified as far advanced has remained in active since the mid to late 1950s. The veteran is experiencing significant ventilatory impairment as shown by his complaints and the May 1998 VA PFT. However, the VA examiner indicated that ventilatory impairment was more likely related to the COPD and the residuals of the lobectomy and thoracotomy. These are non-service connected disabilities. There are no findings indicative of severe residuals resulting from the PTB. Accordingly, it is the Board's judgment that the preponderance of the evidence is against the veteran's claim for an increased rating for the PTB. The Board has considered all pertinent aspects of 38 C.F.R. Parts 3 and 4 as required by the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 592-3 (1991). However, the Board finds no basis which supports a higher rating. ORDER An increased rating in excess of 30 percent for PTB is denied. ROBERT P. REGAN Member, Board of Veterans' Appeals