Citation Nr: 0810912 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-08 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for tuberculosis pleurisy with effusion, inactive, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Motrya Mac, Associate Counsel INTRODUCTION The veteran apparently had active duty service from April 1951 to March 1954. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2006 the veteran withdrew his request for a Travel Board hearing. In May 2007 the Board remanded the issue for further development. FINDING OF FACT The veteran does not have a diagnosis of moderately advanced lesions, nor has it been shown that he has a continued disability, emphysema, dyspnea on exertion or other impairments of health related to his tuberculosis. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for tuberculosis pleurisy with effusion, inactive, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. 4.97, Diagnostic Codes 6721 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and implemented in part at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in his possession that pertains to the claim. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for increase, the VCAA notice must include notice of the type of evidence needed to substantiate a claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Also, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the VA must provide at least general notice of that requirement to the claimant. Vazquez- Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30, 2008). The RO provided a post-adjudication VCAA notice by letter, dated in July 2007. The notice included the type of evidence needed to substantiate the claim for increase, namely, evidence that the disability had become worse and the effect that worsening had on the claimant's employment and daily life. The veteran was notified that VA would obtain VA treatment records and other medical records and that he could authorize VA to obtain private medical records on his behalf. The veteran was asked to submit any evidence that would include that in his possession. The notice included the provision for the degree of disability assignable and for the effective date of the claim. As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); and of Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment and daily life, except general notice of the criteria of the Diagnostic Code under which the claimant is rated, which consists of a specific measurement or test result). To the extent that VCAA notice, was provided after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided substantial content-complying VCAA notice, the claim for increase was readjudicated as evidenced by the supplemental statement of the case, dated in October 2007. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.) To the extent that the VCAA notice did not include the Diagnostic Code under which the claimant and general notice of the criteria, which consists of a specific measurement or test results, at this stage of the appeal, when the veteran already has notice of the pertinent Diagnostic Code and rating criteria as provided in the statement of the case and supplemental statement of the case, there is no reasonable possibility that further notice of the exact same information would aid in substantiating the claim. As the content error did not affect the essential fairness of the adjudication of the claim for increase, the presumption of prejudicial error as to the content error in the VCAA notice is rebutted. Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims. A VA examination was afforded in September 2004 and August 2007. As the veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Factual Background Service medical records showed that the veteran was treated for tuberculosis pleurisy with effusion on the left, and in June 1954 underwent a decortication of the left lung. Service medical records and post service medical records did not suggest the veteran had advanced lesions. By way of rating decision in August 1954, the veteran was granted service connection for tuberculosis pleurisy, effective March 1954. In July 2004, the veteran filed a claim for an increased rating for tuberculosis pleurisy. Private medical records show that in 2003 the veteran was treated for shortness of breath, exertional dyspnea and obstructive lung disease. Records in February 2003 indicated the veteran's CT scan of the chest was reportedly normal except elevated left diaphragm. The diagnoses included exertional dyspnea secondary to chronic obstructive pulmonary disease and restrictive lung defect and obstructive lung disease, asthma versus emphysema. On VA examination in September 2004, the examiner noted the veteran had a tobacco use disorder. The veteran quit smoking in 1957, prior to that he smoked two packs a day for at least 55 years. The veteran complained experiencing shortness of breath which occurs at 20 yards or one flight of stairs. The veteran indicated he has not had a recurrence of tuberculosis and has not required any oral tuberculosis medication. Physical examination showed there were crackles in the bases, otherwise the lung exam was clear. The diagnoses included tuberculosis pleurisy with effusion, inactive, tobacco use disorder and chronic obstructive pulmonary disease secondary to chronic tobacco use disorder. In an addendum, the examiner noted there was no recurrence of the veteran's tuberculosis pleurisy with effusion and his left lower lobe lobectomy did not cause his dyspnea. The examiner concluded the veteran's chronic obstructive pulmonary disease as a result of years of smoking prior to 1987 created a severe obstructive ventilatory impairment making it difficult for the veteran to catch his breath. Accompanying x-rays found postoperative changes, left side, with marked elevation of the left leaf of the diaphragm. In September 2004, the veteran's private doctor indicated the veteran could barely exert at all without becoming very short of breath. In March 2007 the doctor indicated the veteran had multiple problems, the worse of which is moderate to now severe chronic obstructive pulmonary disease. The disability has gotten worse and the veteran currently can barely exert any energy at all without becoming extremely short of breath. In his Form 9 Appeal, dated in March 2005, the veteran stated the VA examiner attributed his problems to smoking, however the veteran argued he smoked minimally prior to 1987. In August 2007 the veteran was examined by the same examiner as in September 2004. The examiner noted the veteran admitted to having stopped smoking in 1987. The veteran indicated he smoked one pack per day, however the examiner reported that private medical records showed the veteran admitted that he had smoked over 50 years one to two packs per day. The veteran reported his tuberculosis had been arrested, he never developed any advanced lesions or required any hospitalization due to recurrence of tuberculosis. He has not had any antituberculous medication since 1954. The veteran stated he began experiencing problems with dyspnea and shortness of breath around 1992. In the past he was treated with pulmonary inhalers. The veteran admitted to having a desk job, which he could maintain as long as extreme activity was not added to his job. The examiner noted that while previous diagnoses included a lobectomy, service medical records revealed that the veteran underwent a decortication procedure and not a lobectomy procedure. Physical examination of the lungs was clear to auscultation anteriorly and posteriorly. In the left lung base, breath sounds were diminished. Right lung was completely clear. The diagnoses included inactive pulmonary tuberculosis with tuberculosis pleurisy with effusion in 1954, treated, and currently resolved; post thoracotomy, June 1954; obstructive ventilatory impairment, chronic obstructive pulmonary disease versus asthma. The examiner further commented that there were no advanced lesions as a result of the veteran's decortication procedure. The veteran's impairment is due to his emphysema which has caused dyspnea on exertion. The veteran reported veteran developing symptoms of dyspnea in 1992, 38 years after his tuberculosis in the 1954. The examiner further explained that tuberculosis does not lead to residual of chronic obstructive pulmonary disease. The examiner opined the veteran's most likely etiology of his obstructive ventilatory impairment, whether it be emphysema or asthma, is his tobacco use disorder. The examiner concluded the veteran's service- connected inactive tuberculosis does not have any impact on his ability to be gainfully employed for either a manual or a desk job. The veteran is considered to be in remission. Accompanying x-rays reported no lung masses or areas of consolidation. There was volume loss on the left. In September 2007, the veteran's spouse stated the veteran's breathing problems were increasing in severity. Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis Public Law 90-493 repealed section 356 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. The use of the protective provisions of Pub. L. 90-493 should be mentioned in the discussion portion of all ratings in which these provisions are applied. 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. In cases where entitlement to service connection for tuberculosis was awarded prior to August 19, 1968, the pertinent criteria are as follows. A 100 percent rating is warranted for active tuberculosis. Once the disease is inactive, it is rated 100 percent for the first two years of inactivity; 50 percent thereafter for four years, or in any event to six years after inactivity; 30 percent thereafter for five years, or to eleven years after inactivity; 30 percent, minimum, following far advanced lesions diagnosed at any time while the disease process was active; 20 percent following moderately advanced lesions, provided there is continued disability, emphysema, dyspnea on exertion, impairment of health, etc.; otherwise, zero percent. 38 C.F.R. §§ 4.97, Diagnostic Code 6724. As noted above, the next higher evaluation, of 20 percent, the evidence must show that tuberculosis is productive of moderately advanced lesions with continued disability, such as emphysema, dyspnea on exertion or some other impairment of heath. As to the first criteria, VA examination dated in September 2004 and August 2007 showed that the veteran's tuberculosis is inactive. The evidence also showed no evidence of moderately advanced lesions. During the August 2007 VA examination, the examiner specifically indicated there were no advanced lesions as a result of the veteran's decortication procedure in service. Lastly, while there is evidence that the veteran has continued respiratory disabilities, to include chronic obstructive lung disease and ventilatory impairment, these disabilities have not been related to his tuberculosis but to his extensive history of tobacco use. Notably, the VA examiner in August 2007 explained that tuberculosis does not lead to residual of chronic obstructive pulmonary disease. The examiner opined the veteran's most likely etiology of his obstructive ventilatory impairment, whether it be emphysema or asthma, is his tobacco use disorder. The Board finds this opinion to be probative as it was rendered by a competent medical professional, who reviewed the claims file in conjunction with examining the veteran. This opinion is uncontroverted by the other evidence of record. Based on a thorough review of the evidence of record, the Board finds that the preponderance of evidence is against the veteran's request for an increased rating of his service- connected tuberculosis, for the reasons discussed above. ORDER Entitlement to an increased rating for tuberculosis pleurisy with effusion, inactive, currently rated as 10 percent disabling, is denied. ____________________________________________ V. L. Jordan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs