Citation Nr: 21023876 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-13 011 DATE: April 22, 2021 ORDER Entitlement to an increased rating of 20 percent, but no higher, for moderately advanced, inactive, pulmonary tuberculosis is granted. Entitlement to service connection for amputation of toes, to include as due to cold injury and/or frostbite, is denied. FINDINGS OF FACT 1. The evidence is in at least relative equipoise as to whether the Veteran had dyspnea on exertion following his moderately advanced, but currently inactive, pulmonary tuberculosis. 2. The preponderance of the evidence is against finding that the Veteran’s amputation of toes was incurred in or otherwise due to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent rating, but no higher, for moderately advanced, inactive, pulmonary tuberculosis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6277. 2. The criteria for entitlement to service connection for amputation of toes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1954 to December 1954 and August 1955 to January 1960. Unfortunately, the Veteran died in January 2018. The Agency of Original Jurisdiction (AOJ) found that the Appellant, his surviving spouse, is an appropriate substitute claimant. See February 2019 Notification letter. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2009 rating decision issued by the Department of Veterans Affairs (VA). See July 2009 Notice of Disagreement (NOD); March 2014 Statement of the Case (SOC); April 2014 Substantive Appeal (VA Form 9). In June 2016, the Board remanded the claims to afford the Veteran the opportunity to appear at his requested hearing before a Decision Review Officer and/or Veterans Law Judge. June 2016 Board decision. The AOJ contacted the Veteran to schedule his hearings. June 2016 Notification letter. The evidence indicates that the Veteran chose to schedule only a hearing before a Decision Review Officer. See July 2016 Hearing request. The Veteran appeared before a Decision Review Officer in a September 2016 informal conference in which further development of the evidence was found necessary. See September 2016 Deferred rating. The AOJ developed the evidence and continued the denial of the Veteran’s claims. September 2019 Supplemental Statement of the Case. The case is now back before the Board. The Board finds that there has been substantial compliance with the June 2016 Board remand directives. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to an increased rating of 20 percent, but no higher, for moderately advanced, inactive, pulmonary tuberculosis. The Veteran asserted entitlement to a higher rating for pulmonary tuberculosis due to worsening symptoms. April 2008 VA Form 21-4138. The Veteran related that he had shortness of breath, trouble climbing stairs, and used a scooter or cane to move. See February 2011 VA Form 21 4142. 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. § 1155; 38 C.F.R. § Part 4. 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. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board has considered the entire record, but only the evidence pertinent to the rating criteria and current disability will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s moderately advanced, inactive, pulmonary tuberculosis was evaluated under Diagnostic Code 6722 and rated as zero percent disabling. The Veteran was granted entitlement to service connection for his pulmonary tuberculosis, effective January 20, 1960. March 1960 Rating decision. For a veteran entitled to compensation for tuberculosis prior to or on August 19, 1968, Diagnostic Code 6722 provides a 100 percent rating for moderately advanced and inactive pulmonary tuberculosis for two years after date of inactivity, following active tuberculosis, which was clinically identified during service or subsequently. See 38 C.F.R. § 4.97. Thereafter, for five years, or to eleven years after the date of inactivity, a 30 percent rating is assigned. Id. Following far advanced lesions diagnosed at any time while the disease process was active, a minimum 30 percent rating is assigned. Id. Following moderately advanced lesions, but provided that there is continued disability, emphysema, dyspnea on exertion, impairment of health, or other similar symptomatology, a 20 percent rating is assigned; otherwise, a noncompensable rating is assigned. Id. The evidence shows that the Veteran was granted a 100 percent rating for his pulmonary tuberculosis from January 20, 1960, to May 19, 1962; a 50 percent rating from May 20, 1962, to May 19, 1966; 30 percent rating from May 20, 1966, to May 19, 1971; and a zero percent rating since May 20, 1971. In this case, the question for the Board is whether the evidence supported that the Veteran’s tuberculosis manifested with far advanced lesions to warrant a minimum 30 percent rating; or with moderately advanced lesions with continued disability, emphysema, dyspnea on exertion, impairment of health, or other similar symptomatology to warrant a 20 percent rating. After careful and thorough consideration of the evidence, the Board finds that the Veteran’s pulmonary tuberculosis more closely approximated the criteria for a 20 percent rating based on evidence of moderately advanced, inactive, pulmonary tuberculosis with continued dyspnea on exertion. Service treatment records show that the Veteran was diagnosed with moderately advanced pulmonary tuberculosis in his right lung. See November 1959 Service treatment record; November 1959 Report of Medical Examination. Treatment records since separation continued to show a history of moderately advanced, but then inactive, pulmonary tuberculosis. See, e.g., May 1960 VA treatment evidence; January 1967 VA treatment evidence. However, the Veteran continued to complain of short of breath and dyspnea limiting his activities. See June 1985 VA treatment evidence; December 2001 VA treatment evidence. The Boards finds that this evidence supports that the Veteran had continued disability with his moderately advanced, inactive, pulmonary tuberculosis, including dyspnea on exertion. The Veteran was also afforded several VA examinations to evaluate the residuals of his pulmonary tuberculosis. The May 2008 VA examiner opined that the evidence showed the Veteran had worsening shortness of breath, but the evidence also showed a possible lupus condition and history of a burn injury, which could have impacted his respiratory symptoms separately from the Veteran’s residuals of pulmonary tuberculosis. May 2008 VA examination for pulmonary, tuberculosis, and microbacterial disease. The May 2018 VA examiner remarked that the Veteran had been unable to complete a pulmonary function test and the most recent successful tests were in 2002 and 2003. Id. A December 2008 VA examiner opined that imaging evidence of the Veteran’s lungs showed signs consistent with a history of pulmonary tuberculosis, but that assessing the severity of his current condition was not possible because the Veteran has been unable to perform a pulmonary function test. December 2008 VA examination for pulmonary, tuberculosis, and microbacterial disease. The December 2008 VA examiner later added that the incomplete pulmonary function tests, if taken at face value, supported that the Veteran’s autoimmune interstitial lung disease and pulmonary hypertension impacted his current respiratory condition independently from his residuals of pulmonary tuberculosis. See February 2011 VA examination. The Veteran was afforded another VA examination in June 2014, in which the examiner noted the Veteran’s history of a burn injury in 1999 and pulmonary embolisms in 2002. June 2014 VA examination for tuberculosis. However, the examiner opined that, in the absence of significant changes in the imaging evidence of his lungs, it was more likely than not that the Veteran’s dyspnea and pulmonary limitations were due to his history of pulmonary tuberculosis. Id. The VA examiners are medical professionals qualified to evaluate the Veteran’s residuals of pulmonary tuberculosis, who had the opportunity to review the evidence, and are entitled to probative weight for these reasons. The March 2008, December 2008, and February 2011 VA examiners found it was not possible to determine whether the Veteran’s moderately advanced, inactive, pulmonary tuberculosis caused the Veteran’s current dyspnea due to the incomplete pulmonary function tests. However, their opinions do suggest that it is possible that the Veteran’s inactive pulmonary tuberculosis could have caused his dyspnea, and the June 2014 VA examiner opined that it is more likely than not that the Veteran’s dyspnea was due to his history of pulmonary tuberculosis based on the imaging evidence. The Board finds that the VA examiners’ opinion and findings, overall, support that the Veteran’s moderately advance, inactive, pulmonary tuberculosis resulted in dyspnea on exertion. Based on the above evidence, the Board finds that the Veteran had dyspnea on exertion following his moderately advance, inactive, pulmonary tuberculosis. The Board notes that, as discussed above, the medical evidence does not support that the Veteran’s had far advanced lesions due to pulmonary tuberculosis to warrant a 30 percent rating under Diagnostic Code 6721. Accordingly, entitlement to a 20 percent rating, but no higher, for his moderately advance, inactive, pulmonary tuberculosis is warranted. 2. Entitlement to service connection for amputation of toes, to include as due to cold injury and/or frostbite. The Veteran asserted entitlement to service connection for his amputation of toes due based on frostbite injury during service. October 2008 VA Form 21-4138. The Veteran related that this occurred while in Germany in 1958 and his foot was placed in a cast. Id. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the evidence shows that the Veteran had amputations of his left toes in 2002, 2008, 2014 and 2015. See May 2016 VA treatment evidence. However, the Board finds that the preponderance of the evidence is against finding that the Veteran’s left toe amputations were incurred in or otherwise due to service. Service treatment records show no complaint of or treatment for the Veteran’s left toes. During the Veteran’s medical examination at separation, there was no noted defect for his left toes and the evaluation of his feet were noted as normal. November 1959 Report of Medical Examination. Instead, the service treatment records show that the Veteran’s 1958 injury in Germany in which his foot was put in a cast was for his right foot, not his left, and due to an ankle sprain. See February 1959 Service treatment record; May 1959 Service treatment record. The Board finds that this evidence is against finding that the Veteran’s amputations of his left toes were incurred in or otherwise due to service. In addition, the medical treatment evidence shows that the Veteran’s left toe amputations were due to chronic osteomyelitis and neuropathic ulcers. December 2008 VA treatment evidence; May 2016 VA treatment evidence. There is no mention of a frostbite injury or injury during service. The Board considered the Veteran’s lay statements about having a frostbite injury to his toes during service. While the Veteran is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature, and to experience symptoms of a foot injury, the causation falls outside the realm of knowledge of a lay person. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Board does not doubt that the Veteran may have experienced a cold injury to left toe, but the service treatment records and medical treatment evidence discussed above is against finding that it was an acute injury requiring the Veteran to seek treatment or an injury with chronic residuals. Moreover, the evidence shows that the Veteran’s reported need for a cast was for his right foot, not his left foot, and was due to an ankle sprain. February 1959 Service treatment record; May 1959 Service treatment record. The Board finds the Veteran’s lay statements to not be probative for these reasons in establishing service connection for his left toe amputations. The Board notes that the Veteran was granted service connection for his right ankle. June 2014 Rating decision. The Board, thus, finds that the preponderance of the more probative evidence is against finding that the Veteran’s amputation of the toes was incurred in or otherwise due to service. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lin 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.