Citation Nr: 1333442 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-09 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a sinus disability, and if so whether the claim should be granted. 2. Whether new and material evidence has been received to reopen a claim for service connection for a headache disability, and if so whether the claim should be granted. 3. Entitlement to a rating greater than 30 percent for residuals of pulmonary tuberculosis (PTB). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to October 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA The issue of entitlement to service connection for a sinus disability and the request to reopen a claim for service connection for a headache disability are addressed in REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. Entitlement to service connection for a sinus disability was denied in a January 2007 rating decision; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 2. The evidence received subsequent to the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a sinus disability. 3. The residuals of PTB are manifested by some impairment of pulmonary function; FEV-1 is not less than 56 percent predicted; FEV-1/FVC is not less than 56 percent predicted; DLCO (SB) is not less than 56 percent predicted; maximum exercise capacity is not 20 or less ml/kg/min oxygen consumption with cardiorespiratory limitation; and neither cor pulmonale; respiratory failure; RVH; pulmonary hypertension; or a requirement for outpatient oxygen therapy is shown. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim of entitlement to service connection for a sinus disability has been presented. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. The criteria for a rating greater than 30 percent for residuals of PTB with emphysema have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6731 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Legal Criteria Generally, a claim which has been denied in an unappealed RO decision may not be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Factual Background and Analysis Entitlement to service connection for a sinus disability was denied in a January 2007 rating decision because the evidence did not show that a sinus disability was related to service or the service-connected PTB. The rating decision notes that the Veteran had failed to appear for a VA examination which might have provided evidence supportive of his claim. Although not noted in the rating decision, the record also did not include a documented sinus disability. The Veteran was notified of this decision but did not appeal the decision or submit pertinent evidence within the appeal period. The evidence received after the January 2007 decision reveals diagnoses of allergic rhinitis and pansinusitis. See, e.g., May 2008 VA treatment record. This evidence is not cumulative or redundant of the evidence previously of record. Moreover, it relates to an unestablished fact necessary to substantiate the claim. Accordingly, reopening of the claim is in order. Increased Rating Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Court has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters mailed in March and November 2009. Although complete notice was not provided until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record reflects that service treatment records and Social Security Administration (SSA) records have been associated with the record. In addition, all VA medical records relevant to the claim have been associated with the record. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran has been afforded appropriate VA examinations, most recently in July 2010. The Veteran has not asserted, and the evidence of record does not show, that the condition has increased significantly in severity since the examination or the most recent pulmonary function tests in July 2009. Although the record does not include the results of a maximum oxygen capacity tests, this is not prejudicial because the condition can be evaluated based on the alternative criteria. 38 C.F.R. § 4.96(d)(i). Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Inactive pulmonary tuberculosis (PTB), initially evaluated after August 19, 1968, is rated depending on the specific findings: residuals are rated as interstitial lung disease, restrictive lung disease, or, when obstructive lung disease is the major residual, as chronic bronchitis (DC 6600). 38 C.F.R. § 4.97, Diagnostic Code 6731. The general rating formula for interstitial lung disease provides a 60 percent rating for Forced Vital Capacity (FVC) of 50- to 64-percent predicted; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 40- to 55-percent predicted; or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 100 percent rating is provided for FVC less than 50-percent predicted; DLCO (SB) less than 40-percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation; cor pulmonale or pulmonary hypertension; or required outpatient oxygen therapy. The general rating formula for restrictive lung disease and rating criteria for bronchitis provide a 60 percent rating for Forced Expiratory Volume in one second (FEV-1) of 40- to 55 percent predicted; FEV-1/FVC of 40 to 55 percent; DLCO (SB) of 40- to 55 percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is provided for FEV-1 less than 40 percent of predicted value; FEV-1/FVC less than 40 percent; DLCO (SB) less than 40 percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); cor pulmonale (right heart failure); right ventricular hypertrophy (RVH); pulmonary hypertension (shown by Echo or cardiac catheterization); episode(s) of acute respiratory failure; or required outpatient oxygen therapy. If a maximum exercise capacity test is not of record, evaluate based on alternative criteria. If the DLCO (SB) test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. When the pulmonary function tests (PFT's) are not consistent with clinical findings, evaluate based on the PFT's unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. Post-bronchodilator studies are required when PFT's are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal, when the examiner determines that post-bronchodilator studies should not be done and states why, or when the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d). 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); 38 C.F.R. §§ 3.102, 4.3 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings for the disability. Service connection was granted for PTB in a December 1970 decision. A 100 percent rating was assigned. The rating was reduced to 30 percent effective March 1, 1972, in a December 1971 rating decision based on evidence of inactive PTB. In the January 2009 rating decision on appeal, the RO denied a rating greater than 30 percent. A September 2008 computerized tomography (CT) scan of the chest revealed stable size of multiple pulmonary nodules and no evidence of new nodules. A December 2008 VA examination record reveals that "with full inhalation, increase AP circumference of chest is 2 centimeters" and that "respiratory rate is 22." The record also reveals that the Veteran became short of breath with minimal activity. Examination revealed minimal use of accessory musculature with respirations at rest, hyperreasonant percussion of the chest, diminished breath sounds, and bronchi over the chest. There was no focal finding on thoracic examination and no finding significantly suggestive of active/inactive tuberculosis. PFTs were only conducted pre-bronchodilator because the Veteran's effort was minimal despite repeated instruction to use increased effort. Even with the reportedly insufficient effort, FEV-1 was 88 percent predicted, FVC was 94 percent predicted, FEV-1/FVC was 75 percent, and DLCO was 84 percent predicted. Chest X-ray was normal. The Veteran was assessed with inactive TB with no current residual. However, the examiner also found the condition resulted in shortness of breath and reduced ability to do physical activity. July 2009 VA PFTs revealed FEV-1 of 79 percent predicted, FVC of 85 percent predicted post-bronchodilator, FEV-1/FVC of 70 percent post-bronchodilator and 71 percent pre-bronchodilator, and DLCO of 82 percent. A July 2010 VA examination record reflects negative histories as to respiratory failure, pulmonary hypertension, RVH, or cor pulmonale. The Veteran did report dyspnea on moderate exertion, cough, burning pain in the right lower lobe approximately once a month, wheezing, sleep apnea, asthma, and pleurisy with empyema. Examination revealed no evidence of pulmonary hypertension and no abnormal breath sounds. Chest expansion was severely limited. Chest X-ray showed no significant acute process and probable stable minor right pleural thickening. The Veteran was assessed with residuals of TB, inactive. The pulmonary lesions were found to be improved compared to the previous examination, and there was no cavity formation. The examiner found the residual of the inactive TB was a restrictive respiratory condition. The examiner found no effect on usual daily activities. The Veteran reported that he was not employed and indicated that he retired due to medical reasons, namely back and respiratory problems. A rating greater than 30 percent is not warranted at any time during the period of the claim for the residuals of PTB under any of the possibly applicable rating criteria. The medical evidence never reveals FVC less than 85 percent predicted, FEV-1 less than 79 percent predicted, FEV-1/FVC less than 70 percent, or DLCO (SB) less than 82 percent predicted. There is no evidence of cor pulmonale, pulmonary hypertension, RVH, respiratory failure, or oxygen therapy. Finally, the record does not indicate the Veteran has a maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. The Board has considered whether there is any other schedular basis for granting this claim but has found none. The Board acknowledges that the RO has characterized the issue as "tuberculosis effusion and emphysema, right chest, inactive, pleural residuals, mild" since an April 1977 rating decision. This characterization was based on a miscomprehension of the medical evidence, however: the February 1977 VA examination cited in the April 1977 rating decision actually diagnosed "tuberculosis effusion and empyema" and not emphysema. The record does not include any medical evidence of emphysema. As such, the Board finds emphysema is not a residual of the service-connected inactive PTB. Moreover, even if the Board were to find emphysema is a residual, the criteria for rating emphysema are identical to the criteria for rating restrictive lung disease and bronchitis; they would not provide a higher rating The Board has also considered whether the Veteran's claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of each disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The residuals of PTB are manifested by shortness of breath and reduced ability to perform physical activity; the reported episodic chest pain is separately evaluated. These manifestations are considered by the rating criteria, which contemplate decreased pulmonary function and lung capacity. The rating criteria provide higher ratings for more severe manifestations and impairment. Therefore, the Board has determined that referral of the claim for extra-schedular consideration is not in order. Finally, the Board has 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. The Board acknowledges that the Veteran is no longer employed and that he has indicated that he retired in 2008 due to back and "respiratory" problems. However, he has not alleged that he is unemployable because of his service-connected residuals of TB, and the record indicates that he has multiple respiratory problems, including asthma, which are not service-connected. Furthermore, there is no other probative evidence indicative of unemployability due to the inactive PTB. VA examination records did not reveal findings indicative of unemployability due to the PTB. The Board acknowledges that the SSA "Disability Determination and Transmittal" report indicates that the Veteran was disabled for SSA purposes due to disorders of the back and emphysema. As discussed above, however, the medical evidence does not indicate that the Veteran has emphysema. In this regard, the Board notes that the medical records relied upon by the SSA in creating this report do not reflect a diagnosis of emphysema - only a finding of "history of emphysema." Moreover, the SSA records do not reveal any findings of impairment related to the emphysema. As such, the Board finds the SSA report is not probative evidence of unemployability due to the inactive PTB. In the absence of probative evidence of emphysema or occupational impairment related thereto and the absence of evidence of unemployability due to the PTB, the Board finds that Rice is inapplicable. ORDER The Board having determined that new and material evidence has been received, reopening of the claim for service connection for a sinus disability is granted. A rating greater than 30 percent for PTB is denied. REMAND Additional development is required to obtain all, outstanding records pertaining to the sinus disability claim: a May 2008 VA treatment record indicates previous treatment for a sinus condition (as shown by the reported diagnoses of pansinusitis and allergic rhinitis) but the associated medical records have not been associated with the record. This must be done. Furthermore, based on evidence of a current disability and the evidence suggestive of sinus condition during service (notably the May 1970 history of "recurrent drainage down the throat), a VA examination and opinion are needed to determine the nature and etiology of the Veteran's sinus disability. With respect to the headache claim, a December 2006 VA examination record reflects the examiner's determination that the reported headache disability "may be related" to sinus congestion. Based on this finding, the request to reopen the claim of entitlement to service connection for a headache disability is inextricably intertwined with the issue of service connection for a sinus disability. Thus, the Board will defer its decision on the headache issue. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain all outstanding records pertinent to the issues on appeal, to include VA treatment records dated prior to December 9, 2006, and from December 10, 2009. 2. Then, afford the Veteran an examination by an examiner with sufficient expertise to determine the nature and etiology of all sinus disorders present during the period of the claim. The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the examiner. With respect to each sinus disorder present during the pendency of the claim, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder began in or is otherwise etiologically related to the Veteran's active service or was caused or permanently worsened by the Veteran's PTB. The rationale for all opinions expressed must also be provided, with discussion of the May 1970 history of recurrent drainage down the throat and productive cough. If the examiner is unable to provide any required opinion, he or she should explain why. 3. Undertake any other indicated development. 4. Thereafter, readjudicate the claims. If any benefit sought on appeal is not granted to the appellant's satisfaction, issue a supplemental statement of the case to the appellant and his representative and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs