Citation Nr: 1304728 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 07-01 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a compensable rating for inactive minimal pulmonary tuberculosis. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1950 to March 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that confirmed and continued the noncompensable evaluation in effect for inactive minimal pulmonary tuberculosis. This appeal was previously before the Board in May 2011 and August 2011 and was remanded for additional development. The case has been returned to the Board for further appellate consideration. In July 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA) with respect to the Veteran's inactive minimal pulmonary tuberculosis. The requested opinion was received in December 2012. The Veteran and his representative were provided with a copy of the opinion and afforded a period of time for response. The Veteran responded in December 2012 and offered further argument in support of his claim. Accordingly, the Board will proceed with the consideration of his case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence of record does not show evidence of currently active pulmonary tuberculosis. 2. The most probative evidence indicates the Veteran's current pulmonary symptoms are not related to his service connected inactive pulmonary tuberculosis. CONCLUSION OF LAW The criteria for a compensable evaluation for the Veteran's inactive minimal pulmonary tuberculosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.14, 4.97, Diagnostic Code 6723 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, VCAA notice was provided in letters dated in June 2005 and April 2009, regarding the evidence needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. An October 2006 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The issue was last readjudicated by way of a supplemental statement of the case dated in June 2012. In May 2011 and August 2011, the Board remanded the case for further development. The Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Additional VA treatment records were associated with the claims folder, the referenced addendum to the May 2011 VA examination was obtained, the Veteran was informed that he should provide completed release forms to obtain private medical records from Pioneer Medical Associates (the Veteran did not respond), and the Veteran was accorded VA examinations and medical opinions were provided on remand. The VA examiners conducted examinations and provided opinions with a supporting rationale. Because the Board determined that a further medical opinion was necessary to adjudicate the Veteran's inactive minimal pulmonary tuberculosis claim, the Board sought a specialist's opinion from VHA and provided the Veteran and his representative a copy of the opinion and an opportunity to respond. As such, the information requested by the Board was provided and there was substantial compliance with the Board's remand instructions and VHA request. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, VA medical records, private treatment records, and VA examination reports and opinions. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument to support his claim. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Veteran seeks a compensable disability rating for his service-connected minimal inactive pulmonary tuberculosis, alleging that he has a current breathing disorder as a result of the tuberculosis damaged scarring of his lungs. He indicated that he suffered from increased shortness of breath, cough, increased wheezing at night, and chest pressure. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for the Veteran's pulmonary tuberculosis was awarded in an October 1952 rating decision. Following the arrest of pulmonary tuberculosis, a January 1954 rating decision, following criteria in the Rating Schedule, assigned graduated ratings for minimal inactive pulmonary tuberculosis, with a 0 percent rating effective from December 4, 1964. In this regard, inactive minimal chronic pulmonary tuberculosis is to be evaluated under the General Rating Formula for Inactive Pulmonary Tuberculosis. Inactive chronic pulmonary tuberculosis will be assigned a 100 percent schedular evaluation for two years after the date of inactivity following active pulmonary tuberculosis which was clinically identified during active service or subsequent thereto. A 50 percent evaluation is thereafter to be assigned for four years, or in any event, to six years after the date of inactivity. A 30 percent evaluation will thereafter be assigned for five years, or in any event, to eleven years after the date of inactivity. A noncompensable evaluation will thereafter be assigned eleven years after the date of inactivity. A minimum 30 percent evaluation is warranted following far advanced lesions diagnosed at any time while the disease process was active. A 20 percent evaluation is warranted following moderately advanced lesions with continued disability such as emphysema, dyspnea on exertion, or an impairment of health. Otherwise, a noncompensable rating is warranted. 38 C.F.R. § 4.97, Diagnostic Code 6723 (2012). The Veteran filed the instant claim for an increased rating in May 2005. VA medical records include June 2004 complaints of coughing and increased wheezing at night. He also indicated that he wheezed during the day but was worse at night. The diagnosis, in pertinent part, was chronic obstructive pulmonary disease (COPD). A November 2004 pulmonary function test revealed moderate obstructive lung defect. During a November 2004 pulmonary consultation, the Veteran reported that he was a former two pack a day smoker who quit about eight years ago. He reported that he was short of breath all the time, and wheezed at night. He had daily cough, sputum production, and wheezing but to a minimal degree during the daytime. He reported a history of being hospitalized for 15 months with tuberculosis in 1951. He only had hospitalization therapy, was not treated with chemotherapy, and did not have pnemothoraces, crush therapy, or pneumoperitoneum. The physician referenced an October 2004 chest x-ray that revealed no significant scarring related to the prior history of tuberculosis. The assessment was moderate chronic obstructive airways disease with significant reversibility after the administration of bronchodialators. The physician opined that the etiology of his obstructive airways disease was smoker's disease. A March 2005 note indicated that the Veteran's COPD was slowly getting worse over time. In June 2005 the Veteran was accorded a VA respiratory examination. During the examination the Veteran complained of shortness of breath even when walking slowly for half to one block. He had a history of asthma. The Veteran also reported that he had been smoking one pack of cigarettes a day for about 50 years; he indicated that he stopped smoking in 2000. Physical examination of the lungs revealed a mild wheeze, bilaterally. The impression was moderate COPD, treated with bronchodilators. A chest x-ray revealed no active disease was present. A pulmonary function test (PFT) revealed mild obstructive lung defect. In an addendum, the examiner concurred with the earlier pulmonologist's finding that the obstructive airways disease is smoker's disease and opined that it was not at least as likely as not that the Veteran's claimed lung/breathing condition was related to his service-connected tuberculosis. A January 2006 CT scan of the thorax demonstrated extensive emphysematous changes in the lung fields. There was no consolidation or pleural effusion. The impression included suspect fatty infiltration hepatic parenchyma. In a September 2006 statement, the Veteran reported that he was told his lungs were scarred upon discharge from Valley Forge Army Hospital for tuberculosis in 1951 to 1952. The Veteran also indicated that he did not have a breathing problem until two years and three months after he quit smoking. Private medical records include a March 2007 chest CT scan which revealed scattered bullous disease and scarring within the lung base. The impression was mild COPD. Another March 2007 CT scan showed minimal scarring in the superior segment of the right lower lobe. In a July 2007 statement, the Veteran clarified that he never smoked three packs of cigarettes a day for 60 years. A December 2008 VA treatment record indicated that the Veteran had a diagnosis of asthma and COPD that was stable. An August 2009 note reported a diagnosis of COPD and basilar scarring, shown from a recent chest x-ray. An April 2009 chest x-ray impression included chronic left basilar scarring, negative for acute pulmonary disease, and mild hyperinflation of the lungs suggestive of COPD. A December 2009 chest x-ray impression was interval development of bilateral pneumonia. In December 2009 the Veteran complained of shortness of breath. He reported that he had chronic breathing problems secondary to his asthma and COPD, which had been fairly stable. He was diagnosed with pneumonia and COPD exacerbation and admitted to the hospital for oxygen. A March 2010 private chest x-ray showed his lungs were hyperinflated - consistent with underlying COPD. The impression was negative for acute pulmonary disease. Private medical records dating from April 2009 to October 2011 reveal complaints of shortness of breath. After the Veteran's hospitalization in January 2010, he reported that his breathing was much better. In March 2010, the Veteran indicated that his breathing improved with the use of prescription medication. In June 2010, the Veteran reported that his breathing had worsened over the summer. In September 2010, the Veteran was reported occasional shortness of breath. In December 2010, the Veteran denied shortness of breath. In July 2011, the Veteran reported that his breathing had progressively worsened over the last two months. He indicated that he was extremely short of breath whenever he worked outside and was wheezing even at rest. He had no shortness of breath or dyspnea on exertion. In an October 2011 report, the Veteran reported occasional problems with shortness of breath that worsened with activity. He also reported that his shortness of breath has not worsened since his last visit. The diagnosis during this treatment was COPD - stable and asymptomatic. VA medical records show the Veteran was treated for COPD. A January 2011 letter from a private physician, Dr. Nesbitt, indicated that the physician treated the Veteran for 25 years. The physician opined that it seemed to him to be a reasonable assumption that the service-related tuberculosis is a continuing contributing factor in the Veteran's chronic lung disease. In a May 2011 letter, another private physician, Dr. Raiber, opined that it seemed to be a reasonable assumption that the Veteran's service-related tuberculosis is a contributing factor in his chronic lung disease. In May 2011 the Veteran was accorded a VA pulmonary tuberculosis and mycobacterial diseases examination. The examiner noted a review of the Veteran's records revealed that he was a heavy smoker in the past, previously smoking three packs per day for nearly 60 years. The medical records also revealed a finding of "moderate obstructive lung defect" in a 2004 PFT. The assessment was moderate chronic obstructive airways disease with significant reversibility after the administration of bronchodilators. During the examination, the Veteran reported that his breathing had become worse since his last VA examination in 2004. A chest x-ray impression was increased lung markings without evidence of acute cardiopulmonary abnormality. A transthoracic echocardiogram revealed mild pulmonary hypertension. A PFT demonstrated minimal obstructive lung defect. The diagnosis was COPD (minimal obstructive lung defect) with no active tuberculosis on x-ray. In a corresponding VA respiratory systems examination, the examiner opined that there was no objective evidence of lung damage and no scarring was noted that could be attributed to the service-connected minimal inactive pulmonary tuberculosis. The examiner also found that the Veteran had pulmonary symptoms of shortness of breath at rest, wheezing which worsened, and cough. The Veteran also had a diagnosis of COPD with a 180 pack a year history according to records. The examiner found that previous pulmonary evaluations attributed the Veteran's COPD symptoms to smoker's disease. Further, the examiner opined that it was more likely that the Veteran's breathing condition was related to long term effects of smoking for so many years and his recent echocardiogram suggested "mild-to-moderate tricuspid regurgitation noted," which the examiner indicated may be a contributing factor to the Veteran's recently progressive symptoms of shortness of breath. She opined that it was not likely that any current pulmonary disorder was caused or aggravated by the service-connected minimal inactive pulmonary tuberculosis, indicating that there were no signs of active tuberculosis on chest x-ray. She noted the Veteran's long term history of cigarette smoking (180 packs a year history) and pulmonary consult that stated the COPD symptoms were associated with smoker's disease. The examiner also noted that the Veteran's PFT improved and opined that the Veteran had cardiac changes that may be contributing to his recent worsening symptoms and therefore are not related to nor aggravated by his service-connected minimal inactive pulmonary tuberculosis. In October 2011 the Veteran was accorded another VA examination. The examiner noted that a review of the Veteran's history revealed that he was diagnosed with pulmonary tuberculosis in 1951 during active duty, was hospitalized, and treated for approximately 15 months. The examiner noted no recurrence or reactivation of tuberculosis. PFTs over the years have shown moderate or mild COPD and the examiner reported the 2004 finding that the Veteran's symptoms were most likely due to smoking for many years. He also indicated that the Veteran's private physician suggested that the Veteran's service-connected tuberculosis was a contributing factor to his chronic lung disease. The diagnoses were asthma and COPD. A chest x-ray in May 2011 demonstrated mildly increased lung marking and no evidence of tuberculosis. A March 2007 CT scan revealed mild COPD; small left pleural effusion and minimal right pleural effusion; and scattered bullus disease and scarring within the lung bases. The examiner opined that the Veteran's claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner stated that the Veteran's symptoms were most likely due to his COPD and not related to his tuberculosis. He also found that the Veteran's current COPD was not most likely caused by or significantly aggravated by his inactive tuberculosis. He stated that the Veteran had tuberculosis in the early 1950s, was treated, and the apparently active disease resolved and has been in an inactive state since then. There was no medical evidence of recurrence and the Veteran did not report any significant lung problems or symptoms until 2000; he was diagnosed with COPD one to two years later. The examiner reported that if tuberculosis had been an issue, it likely would have been causing symptoms prior to 2000 (almost 50 years later). He noted the Veteran's significant smoking history (from 75 to 150 packs a year) and opined that it was far and away more likely that the Veteran's smoking caused his COPD than tuberculosis. X-rays, CT scans, and PFTs showed COPD and some old stable scarring over the years. However, the examiner indicated that this did not indicate that tuberculosis had likely progressed. He opined that it was much less likely that tuberculosis had or has anything to do with the Veteran's current COPD and lung symptoms. In July 2012, the Board requested the opinion of a VA pulmonary specialist with respect to the Veteran's inactive minimal pulmonary tuberculosis. The requested opinion was received in December 2012. In the December 2012 VHA medical opinion, the Chief of Pulmonary and Critical Care section reported that he reviewed the Veteran's file. He opined that it was far more likely that the Veteran's breathing problems were related to his COPD than his minimal inactive pulmonary tuberculosis. The physician reported that some, but not all, of the chest imaging studies showed some evidence of scarring in the right lower lobe that could be related to the previous pulmonary tuberculosis. However, the physician opined that it was impossible to state with certainty that the minimal scarring is related to the previous history of tuberculosis but it was plausible to suspect that it might be related. He did indicate that the chest scan from 2006, which is far more relevant clinically, was almost certainly not related to the previous history of tuberculosis. Regarding the Veteran's current pulmonary symptoms, the physician opined that none of the Veteran's symptoms can be reasonably attributed to the remote history of pulmonary tuberculosis as it was highly unlikely for any symptoms to result from radiographic findings of "minimal scarring." He indicated that the Veteran's symptoms of wheezing and shortness of breath are not symptoms that minor scarring would typically produce. He opined that it was far more likely that the Veteran's symptoms were the result of the Veteran's COPD, which was caused by his long history of smoking. Regarding the findings of extensive emphysematous changes noted in the January 2006 CT scan, he found that it would be highly unusual, if not unheard of, for inactive minimal tuberculosis to cause emphysematous changes in the lungs, whereas these same emphysematous changes quite typically result from long term smoking. The physician further observed that the radiographic changes were not consistent with progression of the Veteran's earlier inactive tuberculosis. Lastly, the physician opined that it was not likely at all (far less than 50 percent probability) that the Veteran's current pulmonary disorder was caused by or aggravated by this service-connected pulmonary tuberculosis. He concluded that there was no evidence to suggest that the minimal inactive pulmonary tuberculosis contributed in any way to his current breathing problems. Rather, the evidence strongly points to COPD secondary to the Veteran's long smoking history as being the cause of his current symptoms. The Board has reviewed the probative evidence of record including the Veteran's lay statements on appeal. The Veteran was awarded service connection for pulmonary tuberculosis effective as of April 1, 1952. This disease was noted to be inactive from December 4, 1953. The clinical record is devoid of any competent evidence reflecting a reoccurrence of active pulmonary tuberculosis since that date. The Veteran argues that his service-connected disability merits assignment of a compensable evaluation. The Board observes that there is no objective evidence showing his tuberculosis resulted in far advanced or moderately advanced lesions. In this regard, service treatment records reflect the diagnosis of minimal pulmonary tuberculosis. Moreover, there is no competent evidence of a clinical reoccurrence of pulmonary tuberculosis on repeated physical evaluation and the Veteran has not reported any recent active tuberculosis. Rather, the Veteran alleges that his current respiratory symptomatology is related to his inactive pulmonary tuberculosis. On this point, the Board accords the greatest probative weight to the October 2012 opinion from the VHA specialist. That physician, a specialist in pulmonology, opined that the Veteran's symptoms were the result of the Veteran's COPD, which was caused by his long history of smoking. In support of his opinion, the specialist indicated that it would be highly unusual, if not unheard of, for inactive minimal tuberculosis to cause emphysematous changes in the lungs noted in the January 2006 CT scan, whereas these same emphysematous changes quite typically result from long term smoking. Finally, he noted that the evidence strongly points to COPD secondary to the Veteran's long smoking history as being the cause of his current symptoms. The specialist reviewed the Veteran's claims file and provided a detailed rationale for his conclusions. This opinion is also consistent with the opinions from other VA examiners. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board acknowledges the favorable opinions from Drs. Nesbitt and Raiber, who opined that it was a reasonable assumption that the Veteran's service-connected tuberculosis was a contributing factor in his chronic lung disease. However, neither physician provided rationale to support such opinions. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Id.; see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). As these physicians provided no explanation for their opinions, the Board finds these two opinions are of little, if any, probative weight. In the absence of competent evidence of a reoccurrence of pulmonary tuberculosis and the highly probative October 2012 opinion from the VA specialist that the Veteran's current respiratory symptoms are not attributable to his service connected inactive pulmonary tuberculosis, a compensable evaluation is not warranted for that disability at any time during the pendency of this appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). While the Veteran does suffer from current respiratory symptoms, such symptoms have been attributed by competent and probative medical opinions to nonservice connected COPD and the Veteran's smoking history. As such, these symptoms cannot be considered when evaluating the Veteran's service connected inactive pulmonary tuberculosis. 38 C.F.R. § 4.14 (when evaluating service connected disability, the use of manifestations not resulting from service connected disability is to be avoided). Although the Veteran believes that his current respiratory symptomatology is related to his service-connected inactive pulmonary tuberculosis, the Veteran is not shown to possess specialized training sufficient to render such an opinion. In this regard, the diagnosis and etiology of respiratory disorders requires medical testing and expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board finds the opinion of the 2012 VA pulmonary specialist to be of significantly greater probative value than the Veteran's lay assertions as to the cause of his current respiratory symptoms. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2011); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level resulting from his inactive pulmonary tuberculosis. His current symptomatology has not been attributed to that disability. Thus, his disability picture resulting from his inactive tuberculosis is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In summary, the most probative evidence indicates that the Veteran's minimal inactive pulmonary tuberculosis is not manifested by active tuberculosis and his current respiratory symptoms are not manifestations of his service connected disability. Accordingly, the Board concludes that the criteria for a compensable disability rating for the Veteran's minimal inactive pulmonary tuberculosis have not been met. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A compensable rating for inactive minimal pulmonary tuberculosis is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs