Citation Nr: 21042024 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 12-33 426 DATE: July 11, 2021 ORDER For the period prior to June 27, 2017, a rating in excess of 30 percent for residuals of inactive tuberculosis to include emphysema and malignant neoplasms of right and left upper lobes is denied. For the period from June 27, 2017, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. For the period prior to June 27, 2017, entitlement to a TDIU on an extraschedular basis is denied. FINDINGS OF FACT 1. For the period prior to June 27, 2017, the service-connected residuals of inactive tuberculosis to include emphysema and malignant neoplasms of right and left upper lobes did not result in forced expiratory volume in 1 second (FEV-1) of 40 to 55 percent predicted, FEV-1/ forced vital capacity (FVC) of 40 to 55 percent, diffusion capacity of the lung for carbon monoxide by single breath method (DLCO) of 40 to 55 percent predicted, or maximum oxygen consumption of 15 to 20 milliliter (ml)/kilogram (kg) in oxygen consumption (with cardiorespiratory limit). 2. For the period from June 27, 2017, the Veteran is in receipt of a 100 percent schedular rating for residuals of inactive tuberculosis to include emphysema and malignant neoplasms of right and left upper lobes, and the evidence does not show entitlement to special monthly compensation (SMC) at the housebound rate. 3. For the period prior to June 27, 2017, the Veteran did not meet the schedular requirements for TDIU, nor does the evidence show that she was unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities CONCLUSIONS OF LAW 1. For the period prior to June 27, 2017, the criteria for a rating in excess of 30 percent for inactive tuberculosis to include emphysema and malignant neoplasms of right and left upper lobes have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.96, 4.97, Diagnostic Codes 6731-6603. 2. For the period from June 27, 2017, the appeal of the issue of entitlement to TDIU is dismissed as moot. 38 U.S.C. §§ 1155 , 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 3. For the period prior to June 27, 2017, the criteria for TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1969 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a compensable rating or service-connected residuals of pulmonary tuberculosis. This appeal followed. In a November 2018 rating decision, the RO increased the assigned rating for residuals of tuberculosis to 30 percent from April 26, 2011 (the date of the increased rating claim) and to 100 percent from June 27, 2011. In a January 2020 decision, the Board noted that, although the Veteran is in receipt of a 100 percent rating for residuals of tuberculosis from June 27, 2017, the date of the claim on appeal was filed on April 26, 2011. Therefore, the Board indicated that the matter of entitlement to a rating in excess of 30 percent for residuals of tuberculosis prior to June 27, 2017 remains on appeal. In January 2021, the Board remanded the claim of entitlement to an rating in excess of 30 percent for residuals of tuberculosis for the period prior to June 27, 2017 for additional development, notably to obtain an advisory VA opinion to determine the nature, extent, and severity of the Veteran's tuberculosis disability for the period prior to June 27, 2017. In April 2021, a VA physician provided the requested opinion. See April 2021 VA advisory opinion. Thus, the requested development has been accomplished, and the matter has returned to the Board for further appellate consideration. The Veteran is in receipt of a combined schedular rating of 100 percent effective, June 27, 2017. As such, a claim for TDIU for the period on appeal prior to June 27, 2017 is part-and-parcel of the Veteran's claim for a higher rating for rating in excess of 30 percent for residuals of inactive tuberculosis to include emphysema and malignant neoplasms of right and left upper lobes. Rice v. Shinseki, 22 Vet. App. 447 (2009). i) A rating in excess of 30 percent for residuals of inactive tuberculosis to include emphysema and malignant neoplasms of right and left upper lobes for the period prior to June 27, 2017 is denied The Veteran seeks a rating in excess of 30 percent for residuals of inactive tuberculosis to include emphysema and malignant neoplasms of right and left upper lobes for the period prior to June 27, 2017. The Veteran's inactive pulmonary tuberculosis is evaluated under Diagnostic Codes (DCs) 6731-6819. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that chronic inactive pulmonary tuberculosis, under DC 6731, is the service-connected disorder, and it is rated as neoplasm, malignant, any specified part of respiratory system exclusive of skin growths, DC 6819. DC 6731 provides that inactive chronic pulmonary tuberculosis should be rated depending on the specific findings 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. Pursuant to Diagnostic Code 6819, a 100 percent evaluation shall be assigned for malignant neoplasms of the respiratory system while treatment is ongoing. However, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105 (e). If there has been no local reoccurrence or metastasis, then the Veteran's cancer is rated based on residuals. 38 C.F.R. § 4.97. Here, in January 2021, the Board remanded the claim to obtain a retrospective advisory opinion that addressed the nature and extent of the Veteran's inactive pulmonary tuberculosis for the period prior to June 27, 2017, to include emphysema and malignant neoplasms of right and left upper lobes. The Board directed that the VA examiner specifically comment on a February 2018 VA examiner's findings that a June 2011 medical opinion was incomplete in that it stated that the Veteran's tuberculosis lung infection had resolved in contrast to an abnormal chest x-ray of bilateral upper lobes interstitial prominence and apical density performed in late June 2011. As subsequent VA examiners in July 2019 and April 2020 did not address these findings, the Board remanded the claim for a retrospective medical opinion. After a review of the above-cited records, an April 2021 VA physician opined, in pertinent part, that the Veteran continued to have significant degree of residuals due to pulmonary tuberculosis with scarring of lung tissue, emphysema and had subsequently developed lung cancer in the scarring of lungs. The examiner indicated that the Veteran had a tuberculosis infection, but that the bacteria in his body were inactive and caused no symptoms. See April 2021 opinion. Here, as discussed above, the Veteran's tuberculosis disability, includes emphysema. Thus, the Board finds that the appropriate Diagnostic Code to evaluate his condition is 6603, the code used to evaluate emphysema. Under DC 6603, a 30 percent rating is warranted when the FEV-1 is 56 to 70 percent predicted, or; the FEV-1/FVC is 56 to 70 percent, or; the DLCO (SB) is 56 to 65 percent predicted. A 60 percent rating is warranted when the FEV-1 is 40 to 55 percent predicted, or; FEV-1/FVC is 40 to 55 percent, or; DLCO (SB) is 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg (with cardiorespiratory limit). A 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg in 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. § 4.96, DC 6603. For evaluation purposes, the post-bronchodilator results are used unless they are poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96, Note 5. Under 38 C.F.R. § 4.96 (d), when evaluating based on PFT's, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes; (6) When there is a disparity between the results of different PFT's so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. Based on a thorough review of the evidence, the Board finds the preponderance of the evidence is against a rating in excess of 30 percent for tuberculosis disability for the period prior to June 27, 2017. At a June 2011 VA Basis examination, pulmonary function tests (PFTs) revealed pre-bronchodilator results of the following: FVC of 97 percent predicted, FEV-1 of 96 percent predicted, FEV-1/FVC of 99 percent. The examiner indicated that DLCO results were not recorded because the Veteran's PFTs were normal. Post-bronchodilator results revealed FVC of 93 percent predicted, FEV-1 of 94 percent predicted, and FEV-1/FVC of 101 percent. The examiner indicated that the PFT results were normal. An April 2017 VA tuberculosis examination report contains results from a pulmonary function test (PFT) performed in May 2014. The May 2014 PFT revealed pre-bronchodilator results of the following: FVC of 81 percent predicted, FEV-1 of 84 percent predicted, FEV-1/FVC of 95 percent; and, DLCO 61 percent predicted. The examiner noted that post-bronchodilator results were not recorded because the testing was ordered by the Veteran's primary care provider to evaluate his "emphysema" and post bronchodilator testing was not ordered/performed. The April 2017 examiner indicated that repeat PFT testing was not ordered at that examination because it was medically inappropriate to perform PFT testing within the first few months of lung surgery purely for a "legal" examination rather than for treatment of a medical condition. The VA examiner indicated that the FEV-1/FVC results from the May 2014 PFT most accurately reflected the Veteran's tuberculosis condition. Exercise capacity testing was not performed. Applying Diagnostic Code 6603 to the foregoing PFT results, the Veteran's inactive chronic pulmonary tuberculosis with COPD does not meet or more closely approximate the criteria for a rating in excess of 30 percent. Specifically, at no time did the Veteran's tuberculosis disability result in FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, DLCO of 40 to 55 percent predicted, or maximum oxygen consumption of 15 to 20 milliliter ml/kg in oxygen consumption (with cardiorespiratory limit), criteria commensurate with a 60 percent rating under DC 6603. As such, a rating in excess of 30 percent for the Veteran's tuberculosis disability for the period prior to June 17, 2017 is not warranted. The Board has considered the Veteran's lay statements that his inactive chronic pulmonary tuberculosis for the period prior to June 17, 2017 is worse than currently evaluated; he is competent to report his symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination and treatment reports) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. As the preponderance of the evidence is against the claim for a rating in excess of 30 percent for inactive chronic pulmonary tuberculosis to include emphysema and malignant neoplasms of right and left upper lobes for the period prior to June 27, 2017, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ii) Entitlement to TDIU for the period from June 27, 2017 is denied The Veteran is in receipt of a 100 percent schedular rating for his residuals of tuberculosis from June 27, 2017. As such, the Board finds that the issue of entitlement to TDIU is moot. In addition to his inactive tuberculosis which is rated as 100 percent disabling, service connection is in effect for the following disabilities for the period prior to June 27, 2017: (i) tinnitus (10 percent disabling); (ii) bilateral hearing loss (noncompensable); (iii) painful scar, status-post right lung biopsy (noncompensable). The evidence does not show, nor does the Veteran or his representative contend, that his other service-connected disabilities form the sole basis for an award of TDIU apart from the service-connected residuals of inactive tuberculosis. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Additionally, the evidence does not show, nor does the Veteran or his representative contend, that he is entitled to special monthly compensation at the housebound rate. Id. iii) Entitlement to a TDIU on an extraschedular basis for the period prior to June 27, 2017 is denied As noted in the decision above, the Veteran is in receipt of a combined schedular rating of 100 percent effective, June 27, 2017. As such, a claim for TDIU for the period on appeal prior to June 27, 2017 is part-and-parcel of the Veteran's claim for a higher rating for rating in excess of 30 percent for residuals of inactive tuberculosis to include emphysema and malignant neoplasms of right and left upper lobes. Rice, supra. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16 (a), she still may receive a TDIU on an extraschedular basis if it is determined that she is unable to secure or follow a substantially gainful occupation by reason of her service-connected disabilities. 38 C.F.R. § 4.16 (b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); See also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Prior to June 27, 2017, the Veteran's service-connected disabilities were: (i) emphysema and malignant neoplasms of right and left lung upper lobes residual of pulmonary tuberculosis (30 percent disabling); (ii) tinnitus (10 percent disabling); bilateral hearing loss (evaluated as noncompensable); scar status-post right lung biopsy associated with emphysema and malignant neoplasms of right and left lung upper lobes (evaluated as noncompensable); and painful scar (10 percent from April 13, 2017 to August 28, 2017). The Veteran had had a combined disability rating of 30 percent between April 26, 2011 and February 27, 2014, and a 40 percent rating from February 28, 2014 to June 27, 2017. 38 C.F.R. § 4.25. Therefore, the Veteran did not have a single disability that is rated at 40 percent and/or have a combined rating of at least 70 percent so as to meet the schedular criteria for TDIU for the period prior to June 27, 2017. See 38 C.F.R. § 4.16 (a). As the Veteran did not meet the applicable percentage standards, the Board must consider whether the Veteran was nevertheless unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. While the Board does not wish to minimize the nature and extent of the Veteran's overall disability for the period prior to June 27, 2017, the weight of the evidence of record does not support a finding that his service-connected disabilities alone, or in conjunction with one another, were sufficient to produce unemployability prior to June 27, 2017. Although they produced some impairment, the evidence does not reflect gainful employment was precluded solely due to the Veteran's service-connected disabilities. Notably, during an April 2017 tuberculosis examination, the examiner noted that the Veteran had undergone thoracic surgery which had caused physical limitations, as opposed to his service-connected tuberculosis disability. In addition, the Veteran has not identified or submitted any competent evidence (e.g., VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability) demonstrating that his service-connected disabilities, individually or in concert, precluded him from securing and maintaining substantially gainful employment, and entitled him to a TDIU on an extraschedular basis for the period prior to June 27, 2017. Here, as described, the probative medical evidence of record is against a finding that it is at least as likely as not (50 percent or greater) that the Veteran was rendered unemployable due to his service-connected disabilities for the period prior to June 27, 2017. Accordingly, TDIU on an extra-schedular basis is not warranted for the period prior to June 27, 2017. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.