Citation Nr: 0815162 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 04-34 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 10 percent for inactive tuberculosis of T6 and T7 with residuals of a thoracotomy and resection of two ribs. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever, Counsel INTRODUCTION The veteran had active service from August 1954 to July 1957 and from December 1957 to November 1958. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran testified in support of this claim at a hearing held at the RO before the undersigned Veterans Law Judge in June 2007. For good cause shown, the Board has advanced this case on its docket pursuant to the authority of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. VA provided the veteran adequate notice and assistance with regard to his claim. 2. The veteran was found entitled to receive compensation for tuberculosis after August 19, 1968. 3. Residuals of the veteran's tuberculosis, which is now inactive, includes two resected ribs, which have not regenerated, and narrowing of the T5-6 and T6-7 disks. 4. The veteran's reported thoracic spine symptomatology is not attributable to the narrowing of the T5-6 and T6-7 disks or to the drainage of the tuberculosis paraspinous abscess. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 10 percent for inactive tuberculosis of T6 and T7 with residuals of a thoracotomy and resection of two ribs have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, 4.73, 4.88b, 4.88c, 4.89, Diagnostic Codes 5001, 5297 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The VCAA and its implementing regulations provide, in part, that VA will notify the claimant and his representative of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. They also require VA to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that such assistance would aid in substantiating the claim. The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, VA provided the veteran adequate notice and assistance with regard to his claim such that the Board's decision to proceed in adjudicating it does not prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). A. Duty to Notify The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court also indicated that the VCAA requires VA to provide notice, consistent with the requirements of 38 U.S.C.A. § 5103(A), 38 C.F.R. § 3.159(b), and Quartuccio, that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. On March 3, 2006, the Court held that the aforementioned notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Court further held that notice under the VCAA must inform the claimant that, if the RO grants his service connection claim, it will then assign such an award a disability rating and an effective date. Id. at 486. In addition, in January 2008, the Court held that, with regard to claims for increased compensation, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008). The Court further held that, if the Diagnostic Code (DC) 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 Secretary must provide the claimant at least general notice of that requirement. The Court additionally held that the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must list examples of the types of medical and lay evidence the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Such evidence includes competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. at 43-44. In this case, the RO provided the veteran VCAA notice on his claim by letters dated January 2003, April 2003, January 2005 and October 2007, the first sent before initially deciding that claim in a rating decision dated February 2003. The timing of such notice reflects compliance with the requirements of the law as found by the Court in Pelegrini II. The content of the notice letters considered in conjunction with the content of another letter the RO sent to the veteran in March 2006 also reflects compliance with the requirements of the law as found by the Court in Pelegrini II and Dingess/Hartman. Therein, the RO acknowledged the claim being decided, notified the veteran of the evidence needed to substantiate that claim, identified the type of evidence that would best do so, informed him of VA's duty to assist, and indicated that it was developing his claim pursuant to that duty. The RO also provided the veteran all necessary information on disability ratings and effective dates. As well, the RO identified the evidence it had received in support of the veteran's claim and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the veteran in obtaining all outstanding evidence provided he identified the source(s) thereof. The RO also noted that, ultimately, it was the veteran's responsibility to ensure VA's receipt of all pertinent evidence. The RO advised the veteran to sign the enclosed forms authorizing the release of his treatment records if he wished VA to obtain such records on his behalf. The RO also advised the veteran to send directly to VA all pertinent evidence he had in his possession. The content of the aforementioned notice letters does not reflect compliance with the requirements of the law as found by the Court in Vazquez-Flores. Such notice informed the veteran of the need to submit evidence demonstrating a worsening or an increase in severity of his service-connected disability, but not of the need to submit evidence describing the effect of any worsening on his employment and daily life. Such notice also did not inform the veteran of the need to submit more specific evidence satisfying the criteria for an increased rating under the DCs pursuant to which his disability is rated. This type of notice is necessary in this case as the DCs under which the veteran's disability is rated authorize an increased evaluation based on specific criteria, rather than on a mere showing of a worsening of the disability and its effect upon the claimant's employment and daily life. The RO's error in this regard is not prejudicial as the record establishes that, despite the lack of notice, the veteran had actual knowledge of the need to submit the previously noted evidence. In a VA Form 646 (Statement of Accredited Representation in Appealed Case) dated March 2005 and during a June 2007 hearing, the veteran and his representative requested the assignment of an increased evaluation based on very specific back symptomatology and a punctured lung, which the veteran had reported, thereby suggesting that they knew that the evidence had to establish residuals, either pulmonary or non-pulmonary, of the veteran's in-service tuberculosis to be assigned such an evaluation. In addition, in a VA Form 9 (Appeal to Board of Veterans' Appeals) received in September 2004 and during the June 2007 hearing, the veteran discussed comprehensively how these alleged residuals affect his employment and daily life. Again, these discussions indicate that the veteran knew what the evidence needed to establish to warrant the assignment of an increased evaluation. Given the foregoing, the Board finds that any decision to proceed in adjudicating this claim does not prejudice the veteran or compromise the essential fairness of the adjudication. Bernard v. Brown, 4 Vet. App. at 392-94; Vazquez-Flores, 22 Vet. App. at 46. B. Duty to Assist VA made reasonable efforts to identify and obtain relevant records in support of the veteran's claim. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). Specifically, the RO secured and associated with the claims file all evidence the veteran identified as being pertinent to his claim, including service medical records, post-service VA and private treatment records, and records from the Social Security Administration (SSA). The veteran does not now claim that there is any outstanding evidence for VA to secure in support of his appeal. In fact, in written statements received in June 2003, January 2005 and April 2006, he indicated that he had no other information or evidence to submit. The RO also conducted medical inquiry in an effort to substantiate the veteran's claim by affording the veteran VA examinations in support thereof. During those examinations, VA examiners discussed whether and to what extent the veteran had residuals of his service-connected tuberculosis disability. Since the Board's October 2007 Remand, during which the Board requested the RO to afford the veteran a VA examination, the veteran has not claimed that the reports of his examinations are inadequate to decide his claim. Under the facts of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what additional evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant); Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005), rev'd on other grounds, 444 F.3d 1328 (2006) (holding that an error, whether procedural or substantive, is prejudicial when the error affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect to the extent that it affects the essential fairness of the adjudication). II. Analysis of Claim The veteran claims entitlement to an evaluation in excess of 10 percent for inactive tuberculosis of T6 and T7 with residuals of a thoracotomy and resection of two ribs. According to his written statements submitted during the course of this appeal and his hearing testimony, presented in June 2007, the veteran has pulmonary and non-pulmonary residuals of his in-service tuberculosis infection, including extensive back problems such as pain, limitation of motion, stiffness and nerve damage, and a punctured right lung that causes radiating pain when breathing deeply. Allegedly, even in the absence of such residuals, an increased evaluation is assignable on the basis that, due to the infection, the veteran had two ribs removed, not resected. Disability evaluations are determined by evaluating the extent to which a service-connected disability adversely affects a veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2007). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Otherwise, in claims for increases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). A disability may require re-evaluation in accordance with changes in a veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The examination on which an evaluation is based must adequately portray the anatomical damage, and the functional loss, with respect to all of these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. §§ 4.40, 4.45 (2007). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995) (holding that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability and that, if the service-connected disability involves a joint rated based on limitation of motion, adequate consideration must be given to functional loss due to pain under 38 C.F.R. § 4.40, and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45). Painful, unstable, or maligned joints due to healed injury are entitled to at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the RO has evaluated the veteran's service- connected tuberculosis disability as 10 percent disabling pursuant to DCs 5001-5297. (Under 38 C.F.R. § 4.27 (2007), hyphenated DCs may be used when a rating under one DC requires the use of an additional DC to identify the basis for the evaluation assigned.) DC 5001 provides that active tuberculosis of the bones and joints is to be rated as 100 percent disabling. Inactive tuberculosis of the bones and joints is to be rated pursuant to 38 C.F.R. §§ 4.88b and 4.89 (2007). 38 C.F.R. § 4.71a, DC 5001 (2007). The provision of 38 C.F.R. § 4.89 is applicable to ratings for inactive nonpulmonary tuberculosis when the appellant was initially found entitled to compensation for such disability prior to or on August 19, 1968. 38 C.F.R. § 4.89. The provision of 38 C.F.R. § 4.88c is applicable to ratings for inactive nonpulmonary tuberculosis when the appellant was initially found entitled to compensation for such disability after August 19, 1968. 38 C.F.R. § 4.88c (2007). In this case, the RO found the veteran entitled to receive compensation for tuberculosis prior to August 19, 1968, effective from November 1958. The former provision is thus applicable. According to that provision, tuberculosis is to be evaluated as 100 percent disabling for two years after the date of inactivity of the active tuberculosis, which was clinically identified during service or subsequently. Tuberculosis is to be evaluated as 50 percent disabling for four years thereafter, or in any event, to 6 years after date of inactivity. Tuberculosis is to be evaluated as 30 percent disabling for five years thereafter, or to 11 years after date of inactivity. Tuberculosis is to be evaluated as 0 percent (noncompensably) disabling thereafter, in the absence of a schedular compensable permanent residual. 38 C.F.R. § 4.89. Based on these criteria and the following reasoning, the evidence in this case establishes that the veteran's service- connected tuberculosis does not more nearly approximate the criteria for an evaluation in excess of 10 percent under any applicable DC. In March 1958, during service, the veteran began to experience pain in his lower thoracic spine. X-rays taken in July 1958 established the existence of a mass or abscess extending from the T2 segment of his spine to the T12 segment of his spine, and narrowing of the T6-7 interspaces. These findings necessitated surgery, or more specifically, a costotransversectomy with resection of the posterior aspects of two ribs (evidence conflicts regarding whether the resection involved the 8th and 9th or the 9th and 10th ribs) and drainage of the abscess. During the surgery, it became apparent that there was a tuberculous infection with bone involvement at T5 and T6 and the surgeon inadvertently entered the pleura. The defect then began to increase in size until such time as the surgeon completed the surgery, closed the pleura, and treated the veteran with a chest tube. The tuberculous with bone involvement necessitated antituberculosis therapy following surgery. X-rays taken soon after the surgery revealed postoperative pleural densities. X-rays taken in October 1958 revealed gradual resorption of the postoperative changes on the right. In December 1958, physicians noted improved, inactive tuberculosis. Physicians continued the antituberculosis therapy until August 1960. Following discharge from active service, during a VA examination conducted in March 1961, a physical evaluation and x-rays revealed well-healed scars, mild flattening of the right hemothorax, narrowing of the T6-7 interspaces and partial resection of two ribs, but no other abnormalities of the back or chest. Beginning in June 1961, the veteran complained of pain in the thoracic region. X-rays revealed no findings other than those shown in March 1961. Since then, including during Medical Board proceedings conducted in June 1962, VA examinations conducted in March 1991, May 2001 and June 2004 and treatment visits dated since 1991, the veteran has continued to complain of pulmonary and non- pulmonary symptoms, including back and right-sided pain, back stiffness, generalized bone pain and weakness affecting his hips, shoulders and arms, feelings of numbness and pain on breathing. All but one set of x-rays conducted since 1961 show resection of two ribs. X-rays conducted in May 2001 show the absence of two ribs, but only on the right side. The radiologist noted that such a finding was consistent with rib removal, status post resection of two ribs on the right side. According to the x-ray results, one residual of the veteran's in-service tuberculosis infection is the resection or removal of two ribs. Under DC 5297, a 10 percent evaluation is assignable for the removal of one rib or the resection of two or more ribs. A 20 percent evaluation is assignable for the removal of two ribs. 38 C.F.R. § 4.71a, DC 5297 (2007). The veteran alleges that he underwent removal of two ribs in service, thereby entitling him to a 20 percent evaluation under DC 5297, rather than the 10 percent evaluation now assigned. His allegation in this regard is supported by the May 2001 x-ray report. It is not, however, supported by the preponderance of the evidence, including his service medical records and numerous x-rays conducted since 1958, which indicate that he underwent resectioning, not removal of two ribs. Moreover, even though the May 2001 x-ray report indicates rib removal, it is conflicting, also noting the partial, rather than complete, absence of two ribs. The question now becomes whether the veteran has any other residuals of his in-service tuberculosis infection and resulting surgery, thereby entitling him to additional evaluations under other DCs. Several medical professionals have addressed whether the symptoms noted above represent such residuals that should be included as part of the veteran's service-connected disability. In May 2001, during a VA spine examination, a VA examiner opined that, to a reasonable degree of medical certainty, the veteran's in- service surgery would cause recurrent spinal disc pain on standing and walking for prolonged periods, repetitive bending, and lifting. In June 2004, during another VA spine examination, x-rays revealed arthritic changes in the dorsal and lumbar spine and hips, which the examiner indicated were not related to infection, but rather were consistent with aging. The examiner also indicated that there was no evidence of a punctured lung and that, although a small pneumothorax developed in service during the surgery, a physician closed and treated it appropriately with a chest tube, resulting in no injury to the lung. As well, the examiner indicated that there was no evidence of right-sided back pain by palpation or percussion. In October 2007, after the Board realized that the aforementioned opinions were insufficient to determine whether any or all of the alleged symptoms represented residuals of the in-service tuberculosis and resulting surgery, it remanded the claim to the RO for another VA examination, during which an examiner was to review the claims file and provide a comprehensive opinion on the matter. In December 2007, as requested, an examiner reviewed the entire claims file, recorded all pertinent findings noted therein and on physical evaluation, also reported thoroughly the veteran's medical history, and conducted all necessary testing before concluding that the veteran's pulmonary and non-pulmonary symptoms were not related to or part of his service-connected tuberculosis disability. He specifically found that there was no evidence of active pulmonary tuberculosis, that the veteran's restrictive disease was due to a large abdomen, not to the tuberculosis or the resections, that the pain in the veteran's high thoracic area was not due to the drained abscess, that the numbness in his feet was due to systemic disease, rather than the abscess, and that the limitation of motion was due to body habitus, not to any disk narrowing or tuberculosis involvement of the disks. The examiner related the disk narrowing at T5-6 and T6-7 to the tuberculosis, now inactive, but indicated that the veteran's reported thoracic spine symptomatology was not attributable to that narrowing or to the drainage of the tuberculosis paraspinous abscess. The examiner based his opinions on standard medical literature indicating that most paraspinous tuberculosis abscesses left no residual of pain or nerve involvement and records from Valley Forge Army Hospital, which noted no neurological abnormalities following drainage of the abscess. Based on these three opinions, the Board finds that the disk narrowing at T5-6 and T6-7 represents another residual of the in-service tuberculosis infection. However, only one reported symptom, the back pain, might be related to that narrowing and ratable as part of the veteran's service- connected tuberculosis disability. According to the VA examiner who evaluated the veteran in May 2001, such a relationship exists. According to the VA examiner who evaluated the veteran in December 2007, no such relationship exists. The Board assigns greater weight to the latter opinion because it is based on a more comprehensive review of the claims file and findings substantiated by the record and supported by rationale. The May 2001 opinion appears to be based on a cursory review of the claims file (in discussing service medical records, examiner writes two sentences naming the in-service procedure and succinctly identifying the subsequent therapy) and no rationale. The Board thus finds that the veteran's reported thoracic spine pain is not attributable to the narrowing of the T5-6 and T6-7 disks and therefore does not represent a residual of the in-service tuberculosis infection. Based on the foregoing, the Board concludes that the criteria for entitlement to an evaluation in excess of 10 percent for inactive tuberculosis of T6 and T7 with residuals of a thoracotomy and resection of two ribs have not been met. The Board notes, however, that the rating schedule is designed to accommodate changes in condition; therefore, the veteran may be awarded a different evaluation in the future should his disability picture change. See 38 C.F.R. § 4.1. At present, however, the presently assigned evaluation is the most appropriate given the medical evidence of record. In reaching this decision, the Board considered the complete history of the disability at issue as well as the current clinical manifestations and the effect this disability has on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). In addition, the Board considered the applicability of the benefit-of-the-doubt doctrine, but as there is not an approximate balance of positive and negative evidence of record, reasonable doubt could not be resolved in the veteran's favor. Rather, as a preponderance of the evidence is against the claim, such claim must be denied. ORDER An evaluation in excess of 10 percent for inactive tuberculosis of T6 and T7 with residuals of a thoracotomy and resection of two ribs is denied. ____________________________________________ M. SABULSKY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs