Citation Nr: 1330491	
Decision Date: 09/23/13    Archive Date: 09/30/13

DOCKET NO.  09-23 010A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to an increased disability rating in excess of 30 percent for residuals of tuberculosis peritonitis.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A. Spector, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1943 to February 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a noncompensable rating for the Veteran's tuberculosis peritonitis.  The Veteran filed a notice of disagreement (NOD) in September 2007, and timely perfected his appeal in July 2009.  Subsequently, in a February 2013 rating decision, the Appeals Management Center (AMC) increased the Veteran's disability rating to 30 percent, effective March 24, 2006, the date on which VA received his increased rating claim.  

The Veteran testified at a Video Conference hearing before the undersigned Acting Veterans Law Judge in July 2011.  A transcript of this hearing was prepared and associated with the claims file.

In August 2011, November 2012, and May 2013, the Board remanded this case for further examinations and adjudication.  This development has now been completed.  

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim.  A review of the documents in such file reveals that there are additional VA treatment records related to the Veteran's claim on appeal.  These records have been reviewed and considered by the AMC in a May 2013 supplemental statement of the case and by the Board.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).





FINDINGS OF FACT

1.  The Veteran's residuals of tuberculosis peritonitis are manifested by a ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of no less than 56 percent predicted.

2.  The competent and probative medical evidence of record does not show that the Veteran's service-connected tuberculosis peritonitis is so exceptional or unusual that referral for extra-schedular consideration by designated authority is required. 


CONCLUSION OF LAW

The criteria for a disability rating in excess of 30 percent for residuals of tuberculosis peritonitis have not been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.383, 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Codes 6604, 6731 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform 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 accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

Here, the duty to notify was satisfied by way of a letter sent to the Veteran in July 2006 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter.  The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence.  The letter also provided notice regarding how disability ratings and effective dates are assigned.  Id. 

VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The VA has also assisted the Veteran with respect to his claim for benefits, such as obtaining VA and private medical records, and providing the Veteran with VA examinations in April 2007, September 2011, and December 2012.  The Veteran has not indicated that he has received additional treatment for his service-connected residuals of tuberculosis peritonitis.  The Board thus concludes that there are no additional treatment records outstanding with respect to that claim.   Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Additionally, in July 2011, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Acting Veterans Law Judge.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 
§ 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 

During the July 2011 hearing, the undersigned noted and explained the issue on appeal.  Information was solicited regarding the Veteran's respiratory symptomatology as well as the functional impact such disability has on his daily life and employment.  Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained.  See Bryant, 23 Vet. App. at 497.  Moreover, the undersigned suggested additional sources of relevant evidence that could assist in substantiating the claim.  Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims.  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2)  and that the Board may proceed to adjudicate the claims based on the current record.

II.  Increased Rating

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4 (2012).  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. § Part 4 (2013).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2013).

When VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant's application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that timeframe.  38 U.S.C.A. § 5110(b)(2); Hart, 21 Vet. App. 505, 509 (2007). Here, the relevant evidentiary window begins one year before the Veteran filed his claim for an increased rating, March 2006, and continues to the present time.

Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided.  38 C.F.R. § 4.14.  It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes.  The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

When the Veteran originally filed an increased rating claim for tuberculosis peritonitis, he was rated noncompensable under 38 C.F.R. § 4.114, Diagnostic Code 7331 for inactive tuberculous peritonitis.  Diagnostic Code 7331 directs that inactive tuberculous peritonitis be rated under criteria provided in 38 C.F.R. § 4.88b and 4.89.  However, these references pertain to non-pulmonary peritonitis.  In the course of this appeal, in a February 2013 rating decision, the Veteran's disability rating for tuberculosis peritonitis was increased to 30 percent, based on pulmonary function test (PFT) findings pursuant to 38 C.F.R. § 4.97, DC 6604.  

In active pulmonary tuberculosis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6731 that directs evaluation of residuals under the criteria for interstitial, restrictive or obstructive lung disease.  As medical examiners have concluded that the Veteran's residuals are best diagnosed as chronic obstructive pulmonary disease (COPD), the Board concurs that Diagnostic Code 6604 is the most appropriate rating criteria in this case.  A 10 percent evaluation is warranted for where pulmonary function tests (PFTs) show Forced Expiratory Volume in 1 second (FEV-1) of 71 to 80 percent predicted, or; Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicated.  A 30 percent evaluation is warranted for pulmonary function tests showing FEV-1 of 56 to 70 percent predicated, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56-65 percent.  A 60 percent evaluation requires FEV-1 of 40 to 55 percent predicated, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55 percent predicated, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).  A 100 percent evaluation is warranted for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC of less than 40 percent, or; DLCO (SB) of less than 40 percent 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 episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy.  38 C.F.R. § 4.97, Diagnostic Code 6604 (2013).

During the pendency of this appeal, VA amended the rating schedule concerning respiratory conditions, effective October 6, 2006.  Specifically, VA added provisions that clarify the use of pulmonary function tests (PFTs) in evaluating respiratory conditions under DCs 6600, 6603, 6604, 6825-6833, and 6840-6845.  See 38 C.F.R. § 4.96(d).  A review of the regulatory changes reveals that such changes, while pertinent to this claim, are non-substantive in nature, and merely interpret already existing law.  As such, the Board finds that the Veteran will not be prejudiced by consideration of these changes.

The Veteran bears the burden of presenting and supporting his claim for benefits.  38 U.S.C.A. § 5107(a).  In its evaluation, the Board considers all information and lay and medical evidence of record.  Id.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has reviewed all of the evidence in the Veteran's claims file, including his VA treatment records, VA examination reports, the hearing transcript, and statements submitted in support of his claim.  The Board notes that, although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, all of the extensive evidence of record.  Indeed, it has been held that while the Board must review the entire record, it need not discuss each piece of evidence in rendering a decision.  See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board's analysis will focus specifically on the evidence that is needed to substantiate the Veteran's claims for an increased disability rating for residuals of tuberculosis peritonitis.  

Turning to the evidence of record, the Veteran was afforded a VA examination in April 2007.  The examiner noted that the Veteran was diagnosed with tuberculosis in Bethesda Naval Hospital in 1947. The examiner discussed the Veteran's entire initial treatment for tuberculosis.  Around the early 1960's, the Veteran was told he was cured.  Since that time, he had no further difficulty with tuberculosis.  The Veteran had no past medical history of pneumonia or asthma.  He did not have a chronic productive cough and his weight had been stable for many years.  He quit smoking two to three years earlier.  Prior to that time, he smoked up to one pack of cigarettes a day for about 70 years.  The Veteran could walk about two blocks on level ground.  He was short of breath after going up a flight of stairs.  He had problems with his balance, which he reported persisted since he received streptomycin back in 1947.  

Upon examination, the VA examiner noted that the Veteran had mild clubbing of the fingers, but no cyanosis.  There were no abnormalities noted on palpation or percussion of the chest.  The lungs were clear to auscultation.  His heart rhythm was regular and there were no murmurs or gallops.  Additionally, there was no increased jugular venous distension, heptomegally, or pedal edema.  The Veteran did have a vertical healed pararectus incision in the left lower quadrant.  Further, he was also quite unsteady when trying to do the tandem gait.  April 2007 x-rays showed no active disease.  The VA examiner concluded that the Veteran's diagnosis was tuberculosis infection with disease, inactive and treated.  April 2007 pulmonary function tests showed a normal FVC of 103.3 percent predicted; the FEV-1 was 78.1 percent predicted; and the FEV-1/FVC was 56 percent.  Since the Veteran did not have a history of asthma or chronic bronchitis, post bronchodilator pulmonary function tests and DLCO were not indicated.  The FEV-1/FVC results were as likely as not the best reflection of the severity of the Veteran's condition.   His difficulty with balance was as likely as not related to therapy for tuberculosis with streptomycin.  

During the July 2011 Board hearing, the Veteran stated that he experienced a return of symptoms that he had during active disease and that his respiratory function had degraded since the examination in 2007.  In August 2011, the Board remanded the claim to obtain additional VA treatment records and a new examination.  

The Veteran was afforded a VA examination in September 2011. The examiner discussed the Veteran's entire medical history of his tuberculosis.  The VA examiner diagnosed the Veteran with pulmonary tuberculosis with pleurisy, also tuberculosis peritonitis, currently inactive.  The Veteran was asymptomatic.  Chest x-rays done in January 2011 showed no pulmonary infiltrates, effusion, or edema.  There was pleural thickening in the left lower lung.  In November 2012, the Board again remanded the claim because the examiner did not consider the 2007 test results, obtain a current pulmonary function test, or explain why a new test was unnecessary.   

The Veteran was afforded another respiratory VA examination in December 2012.  The examiner noted a diagnosis of chronic obstructive pulmonary disease.  The Veteran was noted to have daily inhalational bronchodilator therapy, but did not require outpatient oxygen therapy for his respiratory condition.  Pulmonary function testing conducted in February 2012 revealed pre-bronchodilator results of FVC of 78 percent predicted, FEV-1 of 71 percent predicted, FEV-1/FVC ratio of 64 percent, and DLCO of 117 percent predicted.  Post-bronchodilator results were of FVC of 84 percent predicted, FEV-1 of 81 percent predicted, FEV-1/FVC ratio of 68 percent, and DLCO of 117 percent predicted.  

The Veteran did not currently have any night sweats, fever, or significant balance problems.  Thus, it was less likely than not that any balance problem (not found on today's examination) or night sweats are residuals of the tuberculosis.  Although night sweats can be associated with active tuberculosis, it was usually found in tandem with fever, which he did not claim.  If night sweats were to develop or become manifest, the large mediastinal adenopathy would be the leading cause of this.  This was the condition that he did not want to have investigated.  He walked upright and straight at the examination without any hesitation or staggering.  The examiner reviewed the Veteran's claims file, and the records therein, and noted that there was good evidence in the service treatment records that he had significant cavitary tuberculosis associated with the nodularity of both bases.  As a result of this disease, the examiner concluded that it was at least as likely as not the pulmonary function testing was consistent with the changes of the parenchyma of the lung as caused by tuberculosis.  The examiner once again affirmed that the FEV-1/FVC ratio best represents the Veteran's condition.  The examiner noted that the Veteran denied any daily cough, hemoptysis, sputum production, or shortness of breath with daily activities.  The Veteran is fully ambulatory and drives a car.  The Veteran had no history of recent pneumonias or respiratory failure and did not require oxygen.  

The Veteran's VA treatment records only contain pulmonary function testing results from February 2012.   No additional respiratory function tests are of record other than noted above in the VA examination reports.  Although the outpatient records continue to list COPD as an on-going medical issue, the records are substantially silent on the nature and severity of respiratory symptoms and capacity.  

The Board concludes that the December 2012 examination is adequate because it involved a review of the history, interview with the Veteran, a clinical examination, relevant testing, and comments by the examiner in response to the Board's questions.  As additional VA outpatient treatment records have been obtained and considered and an adequate examination is of record, the Board concludes that there has been substantial compliance with the remand instructions.  

As noted above, VA examiners agreed that the FEV-1/FVC pulmonary function test results best reflected the severity of the Veteran's pulmonary condition.  The Veteran was subsequently diagnosed with and is being rated based on chronic obstructive pulmonary disease (COPD) pulmonary function test findings pursuant to 38 C.F.R. § 4.97, DC 6604. 

When evaluating respiratory conditions based on PFTs, post-bronchodilator results are to be utilized in applying the evaluation criteria in the Rating Schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results.  In those cases, the pre-bronchodilator values are to be used for rating purposes.  38 C.F.R. § 4.96(d)(5).  The DC directs the Board to use the Veteran's post-bronchodilator results. 

The April 2007 pre-bronchodilator pulmonary function test revealed a FEV1/FVC of 56 percent.  Since the Veteran did not have a history of asthma or chronic bronchitis, post-bronchodilator pulmonary function tests and DLCO were not indicated.  February 2012 pulmonary function testing revealed a pre-bronchodilator results of FEV-1/FVC ratio of 64 percent, and post-bronchodilator results of FEV-1/FVC ratio of 68 percent.  These PFT results warrant a 30 percent disability rating under DC 6604.  

Consequently, the Veteran's pulmonary function testing revealed FEV-1/FVC of no less than 56 percent predicted, FEV-1 of no less than 71 percent predicated, and DLCO (SB) of 40 to 55 percent predicated.  These PFT findings do not warrant a higher 60 percent rating under DC 6604.  Indeed, the requirements for a higher 60 percent rating under the diagnostic code is a FEV-1 of 40 to 55 percent predicted, FEV1/FVC of 40 to 55 percent, DLCO of 40 to 55 percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min. 

Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate.  However, as outlined above, the preponderance of the evidence demonstrates that the Veteran's residuals of tuberculosis peritonitis, in and of itself, has not been more disabling than the 30 percent rating assigned at any time during the pendency of this claim.  As such, staged ratings are not warranted.

The Board acknowledges and assigns some probative weight to the Veteran's competent and credible reports of his observable symptoms and limitations.    However, the Board assigns greatest probative weight to the Veteran's PFT results as they are the clinical standards to assess the severity of the residuals of disease as provided in the rating criteria.  The results did not indicate a 60 percent rating for the appeals period.  Accordingly, the Board finds that the preponderance of the evidence is against the claim for an increased disability rating in excess of 30 percent for residuals of tuberculosis peritonitis, and that claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

III.  Extra-schedular Consideration

The rating schedule represents, as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  38 C.F.R. § 3.321(a), (b).  To afford justice in exceptional situations, an extraschedular rating can be provided.  38 C.F.R. § 3.321(b).

The analytical steps necessary to determine whether referral for extra-schedular consideration is warranted are as follows.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The symptoms associated with residuals of the Veteran's service-connected tuberculosis peritonitis include pulmonary function test results that show mild to moderate respiratory obstruction.  He does not experience recurrent infections or flare-up episodes or distress during daily activities and can operate a motor vehicle.  Higher ratings are available for more limiting pulmonary dysfunction.  The functional limitations and symptoms of the Veteran's tuberculosis peritonitis are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describes his disability.  See 38 C.F.R. § 4.97, Diagnostic Codes 6604.  For this reason, referral for consideration of an extraschedular rating is not warranted for this claim.  


ORDER

Entitlement to an increased disability rating in excess of 30 percent for residuals of tuberculosis peritonitis is denied.



____________________________________________
J. W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs