Citation Nr: 1319358 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 10-12 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a total disability rating for tuberculosis (TB) effective October 1958. 2. Entitlement to a compensable rating for tuberculosis (TB). 3. Entitlement to an increased rating for mycobacterium avium complex (chest condition). 4. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from October 1945 through September 1949 and July 1956 through August 1958. This appeal comes to the Board of Veterans' Appeals (Board) initially from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In light of the Veteran's statements over time, the Board has re-organized the issue section to better address the Veteran's concerns and to address his central contentions. In light of the Board's actions, the Board's see no prejudice to the Veteran. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. 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 RO reduced the Veteran's rating for service connected TB in a February 1959 rating decision. The Veteran was notified of the decision, but did not file new evidence or a notice of disagreement within one year. 2. The evidence of record does not establish the Veteran has experienced active TB at any point during the period on appeal. 3. The evidence of record establishes the Veteran's FEV-1/FVC was less than 40 percent in May 2007. 4. The weight of the evidence establishes that the Veteran currently has COPD which began during, or was otherwise caused by, his military service. CONCLUSIONS OF LAW 1. The February 1959 rating decision which reduced the Veteran's rating for service-connected TB is final. The Veteran has not alleged clear and unmistakable evidence. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2012). 2. Criteria for a compensable rating for service-connected TB have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6732 (2012). 3. The criteria for a total disability rating for the Veteran's service-connected chest condition were met effective November 7, 2008, the date of filing. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 4. The criteria for service connection for COPD have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS TB In November 2008 the Veteran filed a claim essentially seeking a total disability rating for his serviced-connected TB effective October 15, 1958. The Veteran stated he was granted a 100 percent rating on that date and due to an error has not continued to receive his pay. The Veteran asserted he should receive any and all back pay due to his total disability rating. The record reflects the Veteran was diagnosed with TB during his military service. In an October 1958 rating decision he was found to be 100 percent disabled for active, minimal pulmonary tuberculosis. However, in a February 1959 rating decision the RO found the Veteran's TB had become inactive and reduced his rating on a scheduled basis. The RO assigned a 100 percent rating from September 1958 to November 1960, a 50 percent rating from November 1960 to November 1964, a 30 percent rating from November 1964 through November 1969, and a noncompensable rating after November 1969. Notice of this rating decision was provided to the Veteran at the address he provided. As such, notice was provided to the Veteran, he did not file new evidence or a notice of disagreement within one year, and this rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Therefore, the Board finds the Veteran is not "missing payments" due to any alleged VA error, but rather has rating was properly reduced to the current noncompensable rate according to the February 1959 rating decision. A final decision by the RO is binding upon the VA and shall not be subject to revision on the same factual basis except by clear and unmistakable error (CUE). 38 C.F.R. §§ 3.104, 3.105(a). The Veteran has not raised a CUE claim regarding this condition, and as such the issue is not before the Board at this time. Should the Veteran choose to file a CUE claim in the future the Veteran should be advised CUE is a very specific and rare kind of error of fact or law, that when called to attention compels the conclusion, to which reasonable minds could not differ; that the result would have been manifestly different but for the error. 38 C.F.R. § 20.1403. In his November 2008 written claim the Veteran also asserted his TB condition had gotten worse, establishing a claim for an increased rating. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently granted a noncompensable rating under Diagnostic Code 6732 for chronic, minimal, inactive pulmonary TB. 38 C.F.R. § 4.97. A compensable rating is not provided unless the chronic, minimal pulmonary TB is active. Id. However, the Board finds the weight of the evidence of record does not establish he had active TB at any point during the period on appeal. Review of the record does not reflect the Veteran received any treatment for active TB during this time period. Moreover, in July 2009 the Veteran's private physician specifically opined his TB was "inactive". In addition the examiner at the Veteran's March 2012 VA examination opined the Veteran's TB was inactive. Therefore, the Board finds the weight of the evidence does not establish the Veteran experienced active TB at any point during the period on appeal. As such, the noncompensable rating for inactive TB under VA regulations was proper. 38 C.F.R. § 4.97. The Board notes that the Veteran does have current symptoms of a severe chest condition. Additionally, the Board notes the Veteran's current conditions are similar to the symptoms he experienced with TB during his military service. However, the medical evidence does not establish these current similar symptoms are due to TB, but rather are due to separate conditions which will be addressed below. Therefore, the Board finds although the Veteran currently has a severe chronic chest condition, his TB is inactive and as such a noncompensable rating for this specific condition is proper. The Veteran's claim for an increased rating for TB is denied. Mycobacterium Avium Complex The above does not end the Board's adjudication of this case. In his November 2008 claim the Veteran also sought service connection for recurrent bronchitis and recurrent pneumonia. In a June 2009 rating decision the RO recharacterized this issue as mycobacterium avium complex associated with inactive pulmonary tuberculosis, granted service connection, and assigned a 60 percent rating under Diagnostic Code 6731-6845 effective November 2008, the date the claim was received. It is important for the Veteran to understand what the RO's actions were in November 2008. The RO did not find that the Veteran's TB had become active in 2008. Simply stated, the RO found that the mycobacterium avium complex was caused or aggravated by the inactive pulmonary tuberculosis. As a result, the Veteran was granted service connection for a new disability: mycobacterium avium complex. The Veteran timely perfected his appeal for a higher initial rating of this new service connected disability. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board notes that in March 2012, while the appeal was pending, the RO granted an increased rating of 100 percent for his chest condition caused by the mycobacterium avium complex, effective March 2010. However, as will be discussed the Board finds this 100 percent rating should have been effective November 2008, the date service connection was granted. Under Diagnostic Code 6732-6845 the Veteran's chest condition was rated under the General Rating Formula for Restrictive Lung Disease. Under this formula a 60 percent rating is assigned when FEV-1 is 40-55 percent of predicted or; FEV-1/FVC is 40-55 percent; or DLCO (SC) is 40-55 percent of predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). 38 C.F.R. § 4.97, Diagnostic Code 6845. A maximum 100 percent rating is assigned when FEV-1 is less than 40 percent of the predicted value, or; the ratio of FEV-1/FVC is less than 40 percent, or; DLCO (SC) is less than 40 percent of predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation) or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by echo or cardiac catheterization), or; episodes of acute respiratory failure, or; required outpatient oxygen therapy. Id. The Board finds the results of the pulmonary function testing from May 2007, the results used by the RO to grant service connection, establish the Veteran was entitled to a total disability rating under the General Rating Formula for Restrictive Lung Disease at that time. The Veteran's FEV-1/FVC ratio was 32 percent before use of bronchodilator and 35 percent after. Both of these results are less than the 40 percent rating contemplated by a 100 percent rating. As such, the Board finds the May 2007 results establish the Veteran met one of the criteria for total disability rating. 38 C.F.R. § 4.97, Diagnostic Code 6845. VA regulations provide that the effective date may be the date it is factually ascertainable an increase in disability occurred if the claim is received within one year from such date, or otherwise the effective date will be the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). However, the Veteran did not file his claim until November 7, 2008, more than one year after the May 2007 pulmonary function testing. Therefore, under VA regulations the effective date will be the date of filing. As such, a total disability rating for the Veteran's service-connected chest condition is granted effective November 7, 2008, the date the Veteran filed his claim and the date service connection was granted. Regarding both the Veteran's claims for increased rating for TB and chest condition the Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case the evidence fails to show anything unique or unusual about the Veteran's chest condition that would render the schedular rating criteria inadequate. Review of the record reflects the Veteran's primary complaint was of lung problems and shortness of breath. The Board finds this complaint was fully addressed by the schedular rating criteria under which these disabilities were rated. Therefore referral for consideration for an extra-schedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, in this case the record does not reflect the Veteran was unemployable due to his chest condition. Instead, in his May 2009 written statement the Veteran described the difficulties he experienced at work with maintaining his frequent doctors' appointments. The Board finds the rating criteria expressly contemplates that the Veteran may lose some work productivity due to his condition, and is designed to compensate the Veteran for that loss. See 38 C.F.R. § 4.1. As such, the Veteran's total disability rating contemplates the Veteran's frequently having to miss work due to required doctor's appointments. Therefore the Board finds the assigned schedular criteria adequately reflects the Veteran's limited work capacity due to his condition, and a claim for TDIU is not raised. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. COPD Finally, the Veteran is also seeking service connection for chronic obstructive pulmonary disease (COPD). In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, as discussed above, the record establishes the Veteran was diagnosed with TB during his military service. Post-service treatment records also establish the Veteran currently has COPD. In October 2008 his private physician submitted a written statement to the Board asserting that the Veteran's current COPD was more likely than not caused by his pulmonary TB he developed during his military service. As such, the Board finds the evidence establishes the Veteran's current COPD began during, or was otherwise caused by, his military service and service connection is granted. However, it is important to note that the criteria used to evaluate COPD under VA regulations are identical to the criteria used to evaluate mycobacterium avium complex, as discussed above. 38 U.S.C.A. § 4.97, Diagnostic Code 6604, 6845. Moreover, both of these conditions cause similar symptoms of lung damage, and the record reflects the Veteran's current chest condition has been alternately attributed to both conditions throughout the period on appeal. The Board notes the RO has not attempted to determine which condition caused the Veteran's current chest condition, but rather chose to rate his entire condition under mycobacterium avium complex. Therefore, the Board finds that although service connection for COPD has been granted, the Veteran is already afforded a total disability based on these same symptoms, as discussed above. Therefore it is important for the Veteran to understand that under the anti-pyramiding rule, this additional grant of service connection does not provide grounds for receipt of additional benefits. 38 C.F.R. § 4.14. The Board finds no way one can distinguish between the mycobacterium avium complex and the COPD. The Veteran is already receiving total disability benefits based on the symptoms of his current chest and lung condition. The Veteran is now simply service connected for mycobacterium avium complex with COPD, nothing more. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in May 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Private treatment records have been obtained, as have service treatment records. The Veteran did not indicate he received any post-service treatment at a VA facility. Additionally, although the Veteran initially requested a hearing before the Board, he withdrew his request in writing in April 2010. 38 C.F.R. § 20.705(e). The Veteran was also provided with two VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. The Board notes in his June 2009 written statement the Veteran objected that no breathing tests were conducted during his examination. However, in his May 2009 report the examiner explained pulmonary function testing was not repeated during the examination due to the Veteran's age, his distance to travel, and the time constraints of his son. Further, the Board finds that the Veteran's claim for increased rating based on his chest condition was fully granted. As such any failure to provide pulmonary function testing in his May 2009 VA examination did not prejudice the Veteran and was harmless error. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for an earlier effective date or increased rating for tuberculosis is denied. The criteria for a 100 rating for the Veteran's service-connected mycobacterium avium complex were met effective November 7, 2008, the date of filing. Service connection for COPD associated with mycobacterium avium complex is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs