Citation Nr: 1804303	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  14-10 420	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to an initial compensable rating for service-connected tuberculosis (TB).  


ATTORNEY FOR THE BOARD

D. Barrett, Associate Counsel



INTRODUCTION

The Veteran served on active duty from October 1971 to October 1991.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted service connection for TB and assigned an initial noncompensable (zero percent) rating, effective May 27, 2008.

This appeal was previously by the Board in October 2015 and July 2016.  It was remanded both times for additional evidentiary development.  The Board's remand directives have been substantially completed.  See Stegall v. West, 11 Vet. App. 268 (1998).


FINDING OF FACT

The competent evidence demonstrates that the Veteran never had active TB, and his inactive pulmonary TB has no residuals.


CONCLUSION OF LAW

The criteria for a compensable rating for TB are not met.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.97, Diagnostic Code (DC) 6731 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

In May 2008, the Veteran filed an original claim for service connection for TB.  In a February 2013 rating decision, the RO granted service connection for TB, assigning a noncompensable rating effective May 27, 2008.  The RO noted that a VA examiner reviewed the evidence of record and opined that the TB was at least as likely as not incurred in military service, as evidenced by a positive PPD test and symptoms while on active duty.  The examiner further opined that it was less likely than not that the Veteran had any residual sequelae or symptoms related to the prior TB infection.

In this decision, the Board will consider whether a compensable rating has been warranted for TB or residuals since the date of the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

I.  Law and Regulations 

Respiratory disorders are rated under 38 C.F.R. § 4.97, DCs 6600 through 6817, and 6822 through 6847.  Under 6730, active TB is rated at 100 percent.  The RO rated the Veteran's TB under DC 6731.  Chronic, inactive, pulmonary TB is rated under this code.

Under DC 6731, inactive pulmonary TB is rated based on residuals, such as interstitial lung disease, restrictive lung disease or when obstructive lung disease is the major residual, as chronic bronchitis.  Restrictive lung diseases and interstitial lung diseases are rated under general rating formulas, while chronic bronchitis is rated under DC 6600.  38 C.F.R. § 4.97.    

Under the General Rating Formula for Restrictive Lung Disease, the minimum compensable rating (10 percent) is warranted for FEV-1 of 71-80 percent predicted, FEV-1/FVC of 71-80 percent, or for DLCO (SB) 66 to 80 percent predicted.  

Under the General Rating Formula for Interstitial Lung Diseases (e.g. DC 6825), a 10 percent rating is warranted for FVC of 75-80 percent predicted, or for DLCO (SB) 66 to 80 percent predicted.

For chronic bronchitis, rated under DC 6600, the lowest compensable rating (10 percent) is warranted for FEV-1 of 71-80 percent predicted, FEV-1/FVC of 71-80 percent, or for DLCO (SB) 66 to 80 percent predicted.

II.  Evidence

The relevant evidence dated during the appeal period consists of private and VA treatment records, several VA examination reports, and the Veteran's lay assertions.  The evidence indicates that the Veteran's diagnosis of TB is inactive and without any of the disabling residuals indicated under DC 6731 (restrictive or interstitial lung problems, or chronic bronchitis).  

VA treatment records dated between 2009 and 2017 consistently indicate the Veteran's lungs were clear to auscultation bilaterally, with no wheezes, rales, or rhonchi noted.  There are no medical findings of active TB.  

The record also contains multiple lay statements from the Veteran in which he maintains that his shortness of breath and wheezing is due to TB he incurred in service.  

The Veteran was afforded a VA examination in February 2013.  During that examination, an examiner reviewed the entire claims file and noted that chest X-rays in January 1992, July 1998, and in May 2012 were negative for active pulmonary disease.  The 1992 X-ray showed some interstitial changes in the lungs consistent with old healed granulomatous disease.  VA treatment records were also negative for active TB or related conditions.  The examiner noted that the 1992 chest X-ray with potentially consistent with prior TB, but all subsequent chest X-rays did not show this finding and the most recent chest X-ray from May 2012 did not show any findings of acute or subacute TB infection.  The examiner concluded it was less likely as not that the Veteran had any residual sequelae or symptoms related to his prior TB infection based on his review of the clinical evidence and his medical training and knowledge, to include his clinical understanding of TB.

Pursuant to the Board's October 2015 remand, the Veteran was afforded a VA examination in January 2016.  The examiner was asked to identify all respiratory impairment due to TB.  During the examination, the Veteran reported a 10 year history of wheezing with physical activity.  He also reported a positive TB skin test in service and again at a VA hospital.  He denied having ever experienced symptoms of TB such as night sweats or blood in sputum.  The examiner identified the current respiratory impairment as emphysema, which was responsible for his wheezing complaints.  The examiner opined that the emphysema was due to his 35+ years of smoking.  

In July 2016, the Board remanded the claim again for another VA examination.  The Board noted that although the January 2016 VA examiner provided an adequate opinion and rationale regarding the Veteran's emphysema that was shown on the most recent PFTs, review of the record revealed that the Veteran was diagnosed with bronchitis in February 2013 about one week after the February 2013 VA examiner provided his medical opinion.  The January 2016 VA examiner did not address whether the diagnosis of bronchitis was a residual condition of the Veteran's service-connected TB.  The Board instructed the examiner to identify each diagnosed disability since May 2008 and indicate whether each condition was identified as a residual of the service-connected TB.  

During a VA examination in December 2016, current respiratory disabilities were identified as acute bronchitis, and rhinitis and emphysema -both of which were chronic in nature.  The examiner determined that the chronic rhinitis and emphysema were a result of the Veteran's 35-40 year smoking history and were not in any way related to the TB.  The examiner further explained that chest X-rays since 2008 do not shown any evidence of TB, active or inactive, and there are no other signs or symptoms of active TB.  The Veteran's 35-40 years of smoking are the clear cause of his all of his current respiratory problems.  
 
III. Analysis

The Board has considered the statements of the Veteran as to the nature and severity of his current symptoms, and he is certainly competent to report shortness of breath and wheezing.  Layno v. Brown, 6 Vet. App. 465, 470(1994).  However, in evaluating a claim for an increased rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals.  The Veteran's unsupported lay assertion, which is that his current respiratory symptoms are due to TB, is outweighed by the medical provided by the VA examiners.

The competent and probative evidence, as reflected by the 2013 and 2016 VA examination reports and VA treatment records, demonstrates that the Veteran's TB is inactive and has not manifested with any residual respiratory impairment.  

Despite the fact that the PFT results provided in 2016 VA examination report would warrant no more than a noncompensable rating based on the rating criteria, the Board acknowledges that it is precluded from differentiating between the symptomology attributable to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so.  Mittleider v. West, 11 Vet. App.181, 182(1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996).  In this case, however, the competent medical evidence of record differentiates between the Veteran's service-connected residuals of pulmonary tuberculosis and his non-service-connected longstanding history of tobacco use.  The 2013 VA examiner concluded that the current respiratory complaints are related to conditions caused by chronic tobacco use.  The 2016 VA examiner likewise concluded that the Veteran's pulmonary symptoms are in no way attributable to the service-connected pulmonary tuberculosis.  Rather, they are the result of his 35+ year smoking history.  There are no competent medical opinions of record to the contrary, and the Veteran does not possess the requisite medical expertise to attribute particular respiratory symptoms to his service-connected TB disability.  Therefore, because the Veteran's respiratory symptoms have specifically been attributed to non-service-connected disability (acute bronchitis and chronic rhinitis and emphysema due to prolonged tobacco use); the Board may not use the stated symptoms (and PFT results) in determining the current severity of the Veteran's service-connected respiratory disability.  To do so would violate the rule against pyramiding.  See Mittleider, supra; 38 C.F.R. § 4.14 (the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected rating is to be avoided).  As such, a compensable disability rating is not warranted in this case. 

All potentially applicable DCs have been considered in this decision; however, a compensable rating is not warranted because the preponderance of the evidence is against the claim.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  There are no additional expressly or reasonably raised issues presented on the record.


ORDER

An initial compensable rating for service-connected TB is denied.




____________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs