BVA9504079 DOCKET NO. 91-20 578 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for cardiovascular disability. 2. Entitlement to service connection for chronic obstructive pulmonary disease. 3. Entitlement to an increased evaluation for pulmonary tuberculosis, inactive, far advanced, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from August 1945 to November 1946. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 1990 rating decision by the Lincoln, Nebraska, Regional Office (RO). A notice of disagreement was received in September 1990, and a statement of the case was issued in October 1990. The veteran's substantive appeal was received in March 1991. The case was previously remanded by Board decisions dated in September 1991 and March 1993. The case is now again before the Board for further appellate review. The veteran is represented by the Disabled American Veterans. The veteran's appeal originally included the additional issues of entitlement to service connection for bilateral hearing loss and tinnitus. By rating decision dated in July 1993, the RO granted the veteran's claims for these benefits. Accordingly, those issues are no longer in appellate status. The Board also notes that the veteran also appears to be contending that it was the medical treatment, including medications, provided to him as part of the treatment for his pulmonary tuberculosis which caused his cardiovascular disability and chronic obstructive pulmonary disease. The matter is referred to the RO for clarification as to whether the veteran is advancing a claim under 38 U.S.C.A. § 1151 (West 1991) and, if so, for appropriate development and adjudication. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that the veteran's heart disorder and chronic obstructive pulmonary disease developed due to his service-connected pulmonary tuberculosis. The veteran further directs the Board's attention to a July 1989 Department of Veterans Affairs (VA) outpatient report which includes a notation by the examining physician that the veteran's cardiac symptomatology is most likely caused by his lung disease. The veteran's representative also maintains that the record does not support a finding that the veteran has a significant history of cigarette smoking as alluded to by a VA physician at a recent examination. It is also asserted that the severity of the veteran's service- connected pulmonary tuberculosis has increased and that a higher disability rating is therefore warranted. The veteran reports that he has difficulty breathing and suffers frequent blackouts. 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 contained in and associated with 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 entitlement to service connection for cardiovascular disability and against entitlement to service connection for chronic obstructive pulmonary disease. It is the further decision of the Board that the preponderance of the evidence is against entitlement to a disability rating in excess of 30 percent for service-connected pulmonary tuberculosis. FINDINGS OF FACT 1. Cardiovascular disability, including arteriosclerosis and hypertension, was not manifested during the veteran's active military service or for many years thereafter. 2. An etiological relationship between the veteran's cardiovascular disability, including arteriosclerosis and hypertension, and his service-connected pulmonary tuberculosis has not been demonstrated. 3. Chronic obstructive pulmonary disease was not manifested during the veteran's active military service or for many years thereafter. 4. An etiological relationship between the veteran's chronic obstructive pulmonary disease and his service-connected pulmonary tuberculosis has not been demonstrated. 5. The veteran's service-connected pulmonary tuberculosis has been inactive since 1954. CONCLUSIONS OF LAW 1. Cardiovascular disability, including arteriosclerosis and hypertension, was not incurred in or aggravated by service, nor may cardiovascular disability, including arteriosclerosis and hypertension, be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 2. The veteran's cardiovascular disability, including arteriosclerosis and hypertension, is not proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1994). 3. Chronic obstructive pulmonary disease was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 4. The veteran's chronic obstructive pulmonary disease is not proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1994). 5. A disability rating in excess of 30 percent for service- connected pulmonary tuberculoses is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 3.375 and Part 4, including 4.96 and Codes 6721, 6724, 6731 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Cardiovascular Disability and for Chronic Obstructive Pulmonary Disease. Statutory law as enacted by the Congress charges a claimant for VA benefits with the initial burden of presenting evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). This threshold requirement is critical since the United States Court of Veterans Appeals (Court) has held that if a claim is not well- grounded, the Board does not have jurisdiction to adjudicate that claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). A well- grounded claim has been defined by the Court as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 91 (1990). The essence of the veteran's contentions is that his service- connected pulmonary tuberculosis led to the development of his heart disorder and chronic obstructive pulmonary disease. In recognition of the fact that certain symptomatology, such as emphysema and dyspnea on exertion, listed under Diagnostic Codes 6724 and 6731 for pulmonary tuberculosis may also be associated with other diseases of the lungs or some heart disorders, the Board believes that the veteran's claims "plausible" and thus well-grounded under the limited circumstances of this case. With regard to entitlement to service connection, applicable law provides that service connection will be granted if the facts, shown by a preponderance of the evidence, establish that a particular disease or injury resulting in disability was incurred in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1994). Certain chronic disabilities, such as cardiovascular disease and hypertension, will be presumed to be related to service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Service connection may also be granted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). Moreover, service connection may be granted for disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310 (1994). A review of the record shows no complaints or manifestations of cardiovascular disability or chronic obstructive pulmonary disease during service or for many years thereafter. In fact, although the veteran underwent numerous medical examinations over the years to follow-up on the status of his pulmonary tuberculosis, there are no documented findings related to a heart disorder or to chronic obstructive pulmonary disease until the late 1980's, nor is there any evidence to otherwise link these disabilities to his period of military service. Accordingly, there is no basis for establishing service connection for cardiovascular disability or for chronic obstructive pulmonary disease on either a direct or a presumptive basis. However, as noted earlier, it appears that the veteran's underlying argument is that there is a secondary relationship between these two disabilities and his service-connected pulmonary tuberculosis and that service connection is warranted pursuant to 38 C.F.R. § 3.310 (1994). With regard to cardiovascular disability, certain records dated in the 1980's and 1990's refer to hypertension and to ischemic heart disease while others seem to indicate that there was no clinical evidence of heart disease. However, the medical record clearly shows that the veteran suffers from episodes of cardiac arrhythmia and syncope. The veteran claims that VA examiners told him in July 1989 that his cardiac symptomatology was related to his lung disorder. The claims file does in fact include a July 1989 VA cardiology outpatient clinic report which contains the notation that the veteran's frequent premature ventricular contractions were most likely caused by lung disease. However, the medical record makes it clear that it was the veteran's chronic obstructive pulmonary disease which was symptomatic and which was being treated during this period of time. The Board therefore believes that the only reasonable interpretation to be given to this opinion is that the veteran's cardiac symptomatology is due to his chronic obstructive pulmonary disease, not his service-connected pulmonary tuberculosis. The Board stresses that the veteran's pulmonary tuberculosis has been inactive since 1954 as verified by numerous medical follow-up examinations. Under the circumstances, the Board is compelled to conclude that no medical relationship has been established to link the veteran's cardiovascular disability, however diagnosed, to his service-connected pulmonary tuberculosis. Although the appellant may report symptoms he perceives to be manifestations of disability, questions involving medical causation must be resolved by medical experts. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). There is simply no such medical evidence of medical causation and thus no basis for establishing service connection for cardiovascular disability as secondary to the veteran's service-connected pulmonary tuberculosis. 38 C.F.R. § 3.310 (1994). Turning to consideration of the claimed secondary relationship between the veteran's chronic obstructive pulmonary disease and his service-connected pulmonary tuberculosis, the Board notes that the examiner who conducted the April 1993 medical examination pursuant to the Board's remand stated his opinion that the veteran's chronic obstructive pulmonary disease is not etiologically related to tuberculosis, but is most likely related to a long history of cigarette smoking and to lung dysfunction related to asthma. This examiner did acknowledge that some restrictive dysfunction was probable "from previous thoracoplasty", but he cited cigarette smoking as "far and away" the most likely cause of the veteran's chronic obstructive pulmonary disease. As previously noted, the Court has indicated that questions requiring skill in differential diagnosis and issues of medical causation must be made by medical experts. Espiritu, id. The Board notes here that despite the examiner's reference to a thoracoplasty, the record does not show that the veteran underwent this surgical procedure as part of his treatment for tuberculosis. Instead, the veteran was treated by antibiotic medications. However, the medical record as a whole otherwise supports the examiner's opinion regarding a lack of an etiological relationship between the veteran's tuberculosis and his chronic obstructive pulmonary disease, and the Board therefore finds this examiner's opinion to be persuasive and determinative. Moreover, despite the assertions made by the veteran's representative, the veteran's medical records are replete with references to his having a smoking habit. In other words, the preponderance of the evidence is against entitlement to service connection for chronic obstructive pulmonary disease on a secondary basis. 38 C.F.R. § 3.310 (1994). II. Increased Rating for Pulmonary Tuberculosis. The veteran has also claimed that the severity of his service- connected pulmonary tuberculosis has increased and that a higher disability rating is therefore warranted. This issue involves the assignment of a disability evaluation to approximate the degree of impairment which this disability imparts to the veteran. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (West 1991). The veteran's service medical records show lung symptomatology treated at that time as bronchitis as well as radiological evidence which was interpreted at that time as indicative of old inactive tuberculosis. By 1951, active tuberculosis had been diagnosed, and service connection for pulmonary tuberculosis, far advanced, active, was established by rating action in May 1951. The veteran was hospitalized for a period and apparently received follow-up treatment by a family physician. By 1954, special VA chest examination showed his pulmonary tuberculosis to be inactive. Over the years, regular VA chest examinations have consistently shown no recurrence of active tuberculosis, and current medical records confirm that the pulmonary tuberculosis remains inactive. The rating criteria for far advanced, inactive, pulmonary tuberculosis are protected for those veteran's with entitlement on August 19, 1968. 38 C.F.R. § 4.96 (1994). Under the standards set forth in Diagnostic Codes 6721 and 6724, a 100 percent evaluation is assigned for pulmonary tuberculosis for two years after inactivity. Thereafter, for four years, or in any event, to six years after the date of inactivity, a 50 percent evaluation is assigned. A 30 percent evaluation is assigned thereafter, for five years, or to 11 years after date of inactivity. Following far advanced lesions (Diagnostic Code 6721), a minimum rating of 30 percent is assigned. The record clearly shows that the veteran's tuberculosis has been inactive for the last forty years, and while the veteran remains entitled to a minimum 30 percent rating under Diagnostic Codes 6721 and 6724, a higher evaluation is therefore not for application under those standards. Nevertheless, although service connection was established for tuberculosis prior to August 19, 1968, the rating criteria effective after August 19, 1968, should also be considered if more favorable to the veteran. Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). Under Diagnostic Code 6731, a 100 percent rating is applied for one year after the dated of attainment of inactivity of tuberculosis. Thereafter, a 100 percent rating is for application if there are pronounced residuals attributable to tuberculosis with 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 rating is for application under Diagnostic Code 6731 when residuals attributable to tuberculosis are severe with extensive fibrosis, severe dyspnea on slight exertion with corresponding ventilatory deficit confirmed by pulmonary function tests with marked impairment of health. A 30 percent rating under this Code is for application when there are moderate residuals with considerable pulmonary fibrosis and moderate dyspnea on slight exertion, confirmed by pulmonary function tests. There is no doubt that the veteran suffers from significant lung disability. However, it is also clear that the major portion, if not all, of the veteran's respiratory problems are attributable to his nonservice-connected chronic obstructive pulmonary disease rather than his service-connected pulmonary tuberculosis. In this regard, the VA examination in April 1993 revealed shortness of breath and obstructive dysfunction with decreased pulmonary function tests. The examiner diagnosed the veteran's chronic obstructive pulmonary disease to be moderately severe, but again noted that his tuberculosis was inactive. An x-ray of the veteran's chest was interpreted as showing the lungs to be hyperinflated with destructive changes due to chronic obstructive lung disease. Calcified granulomas with pleural scarring were noted in the right apex consistent with antecedent granulomatous disease with no new areas of parenchymal consolidation. Additionally, a review of medical records dated in the 1980's and 1990's clearly supports a finding that the veteran's chronic obstructive pulmonary disease is the cause of his current respiratory problems. In sum, while it is clear that the veteran suffers from disabling lung symptomatology, the record persuasively shows that his current lung problems are not attributable to his service- connected inactive pulmonary tuberculosis. Under the circumstances, a disability evaluation in excess of the current 30 percent is not warranted. Moreover, the evidence does not show such an exceptional or unusual disability picture attributable to his service-connected pulmonary tuberculosis so as to warrant an extra-schedular rating under 38 C.F.R. § 3.321 (1994). ORDER The appeal is denied. EUGENE A. O'NEILL 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.