Citation Nr: 21066609 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-11 544 DATE: November 1, 2021 ORDER Entitlement to an initial compensable rating for tuberculosis (TB) pleurisy is denied. FINDING OF FACT The Veteran's pulmonary TB is inactive and not shown to have had compensable residuals since September 19, 2013, so at any time during the review period under consideration. CONCLUSION OF LAW The criteria are not met for entitlement to an initial compensable rating for the pulmonary TB pleurisy. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.97, Diagnostic Code (DC) 6732-6825. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1992 to January 1995. This appeal to the Board of Veterans' Appeals (Board) is from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that, in relevant part, granted service connection for inactive TB pleurisy and assigned an initial 0 percent (so noncompensable) rating retroactively effective from September 19, 2013, so back to the date of receipt of this claim. The Veteran appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119 (1999) (indicating in this circumstance VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings since the effective date of the award if there have been occasions when the disability has been more severe than at others). In July 2018, the Board remanded this claim back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration including especially for a VA examination reassessing the severity of this disability. There was not initial compliance with that remand directive, so the Board again remanded this claim back to the RO (AOJ) in July 2019 for more medical comment (an addendum opinion) after also obtaining any outstanding private or VA treatment records relevant to this claim. There since has been the required compliance, certainly acceptable substantial compliance, with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to an initial compensable rating for TB pleurisy is denied. Disability evaluations are determined by the application of a schedule of ratings (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate DCs identify the various disabilities. Where there is reasonable doubt as to the degree of disability, this doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection 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. Francisco v. Brown, 7 Vet. App. 55 (1994). That said, and as already alluded to, in determining the present level of a disability for any increased evaluation claim, regardless of whether an initial or established rating, the Board must consider whether to "stage" the rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings demonstrating distinct time periods during which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Respiratory disorders are rated under 38 C.F.R. § 4.97. This section distinguishes between ratings for pulmonary TB prior to and on August 19, 1968 (DCs 6701 through 6724) and those initially rated after August 19, 1968 (DCs 6730 through 6732). Service connection has been in effect for this disability since September 19, 2013, when VA received this claim. Therefore, DCs 6730 through 6732 apply. The Veteran's existing rating is under DC 6732-6825. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional DC is shown after the hyphen. 38 C.F.R. § 4.27. DC 6732, which rates active or inactive TB pleurisy, indicates the condition should be rated under 38 C.F.R. §§ 4.88c or 4.89, whichever is appropriate. 38 C.F.R. § 4.88c provides ratings for inactive nonpulmonary TB initially entitled after August 19, 1968, and 38 C.F.R. § 4.89 provides ratings for inactive nonpulmonary TB in effect on August 19, 1968. In this case at hand, the Veteran was diagnosed with TB in 1994 and became service connected for inactive TB pleurisy effective September 19, 2013, the date he filed a claim for service connection for this condition. Thus, 38 C.F.R. § 4.88c applies. That section provides that, for one year after date of inactivity, following active TB, a 100 percent rating is warranted, following which residuals are to be rated under the specific body system or systems affected. Here, the Veteran's residuals are most closely contemplated by DC 6825, which pertains to interstitial lung disease, specifically, interstitial fibrosis (scarring). According to DC 6825, interstitial lung disease is to be rated under the General Rating Formula for Interstitial Lung Disease (General Rating Formula). This General Rating Formula provides as follows: a 100 percent evaluation is assigned for a forced vital capacity (FVC) less than 50 percent of predicted value, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale (right heart failure) or pulmonary hypertension, or; requires outpatient oxygen therapy. A 60 percent evaluation is assigned for FVC of 50- to 64-percent predicted, or; 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 30 percent evaluation is assigned for FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65- percent predicted. A 10 percent evaluation is assigned for FVC of 75- to 80-percent predicted value, or; DLCO (SB) of 66- to 80-percent predicted. See 38 C.F.R. § 4.97. Additionally, 38 C.F.R. § 4.31 provides that a 0 percent (noncompensable) rating will be assigned in every instance where the Rating Schedule does not provide for a zero percent evaluation but the requirements for a compensable evaluation are not met. Post-bronchodilator results are required when pulmonary function tests (PFTs) are used for rating purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be performed and explains why. 38 C.F.R. § 4.96(d)(4). When evaluating a disability based upon PFT results, post-bronchodilator results are used unless they are poorer than the pre-bronchodilator results. If so, the pre-bronchodilator results are used. 38 C.F.R. § 4.96(d)(5). If the DLCO (SB) test is not of record, VA may evaluate based on alternative criteria so long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). If there is a disparity between the results of different PFTs such that the level of evaluation would differ depending on which test result is used, the rating official is directed to use the test result that the examiner states most accurately reflect the level of disability. 38 C.F.R. § 4.96(d)(6). Turning now to the relevant findings in this case at hand, the Veteran underwent a VA examination in January 2014 in response to his claim of entitlement to service connection for this condition. The pre-bronchodilator results revealed FVC at 97 percent of predicted, forced expiratory volume in one second (FEV-1) at 95 precent predicted with FEV-1/FVC ratio of 98 percent. A post-bronchodilator test was not administered since the pre-bronchodilator results were normal. A DLCO measurement was not provided since it is not indicated for the Veteran's condition. An exercise capacity test had not been performed, and the examiner did not provide any explanation why this additional examination was not completed. Consequently, the Board found this examination inadequate for rating purposes and remanded the claim. See 38 C.F.R. § 4.2. Another VA examination was provided in March 2019. This VA examiner indicated the PFT results accurately reflected the Veteran's then current pulmonary function. Test results indicated that pre-bronchodilator FVC was 97 percent of predicted, FEV-1 was 98 percent predicted, and FEV-1/FVC was 101 percent. However, the Board found this examination inadequate, as well, because the examiner did not perform an exercise capacity examination and did not offer an explanation as to why one was not performed. So, the Board again remanded this claim. See again 38 C.F.R. § 4.2. There resultantly was a still additional VA examination in January 2020 during which the Veteran reported shortness of breath upon exertion due to his service-connected TB pleurisy. But his PFT results reflected the following pre-bronchodilator findings: FVC was 97 percent predicted; FEV-1 was 98 percent predicted; and FEV-1/FVC was 101 percent. The examiner indicated the FVC-1 test result most accurately reflected the Veteran's level of disability. Post-bronchodilator results were not obtained since the pre-bronchodilator results were normal. DLCO and exercise capacity testing were not performed. However, the VA examiner explained that the Veteran's file is unremarkable for a history of exercise capacity test since there is not an option for ordering an exercise capacity test for evaluation. It also was explained that DLCO is not required for TB since the initial evaluation was not determined by DLCO. Based on the results of those several VA compensation examinations, also the other relevant lay and medical evidence in the file, the Board finds that the most recent January 2020 VA examination is the most probative evidence of record regarding the Veteran's respiratory capacity and functioning including when considering the results of his PFT and explanation of why certain tests were verus were not done or do not need to be performed. Looking back historically on this claim, the Board found that the earlier January 2014 and March 2019 VA examinations were inadequate because the VA examiners had failed to provide an exercise capacity test or explain why it would not be useful or valid in the Veteran's case. See 38 C.F.R. § 4.96(d)(2). Furthermore, although the January 2020 examiner had indicated that FEV-1 most accurately reflected the Veteran's level of disability, the Board is not bound by that statement as, under DC 6825, FVC or DLCO test is used. However, the FVC test result was 97 percent predicted, which is commensurate with a noncompensable (0 percent) rating, so with the rating the Veteran already has. 38 C.F.R. § 4.97, DC 6825. A higher (i.e., compensable) rating is not warranted at any time during the review period on appeal because there is no evidence of record indicating the Veteran's FVC at any time has been less than 80-percent predicted. The Board acknowledges that the Veteran is competent to report his symptoms, such as shortness of breath, but he is not also competent to provide a probative opinion regarding the severity of his symptoms, including in relation to the applicable rating criteria that are based primarily instead on the results of objective clinical testing and evaluation (PFT, etc.). See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The criteria of the Rating Schedule contemplate the impairment caused by the degree of pulmonary function loss. The Board has considered whether any additional DCs may be applicable in this case and finds that DC 6732-6825 is the most appropriate rating code because it pertains specifically to the service-connected disability in this Veteran's case interstitial lung disease. His pulmonary TB pleurisy is not shown to involve any other factor that would warrant evaluation of this disability under any other provisions of the Rating Schedule. In summary, the Board finds that a noncompensable disability rating is warranted throughout the entire period on appeal. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for his pulmonary TB pleurisy since it is inactive and continues to be. As such, the reasonable doubt doctrine is inapplicable in this instance, and his initial rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.