Citation Nr: 0120409 Decision Date: 08/09/01 Archive Date: 08/14/01 DOCKET NO. 00-01 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Evaluation in excess of 10 percent for chronic obstructive pulmonary disease (COPD) secondary to asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD T. Mainelli, Associate Counsel INTRODUCTION The veteran served on active duty from July 1959 to July 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO granted service connection for COPD secondary to asbestosis and assigned an initial 10 percent evaluation. The veteran filed a timely Notice of Disagreement (NOD) with the RO's initial rating in July 1998, but withdrew this filing the next month. He subsequently filed another timely NOD with his initial rating and perfected his appeal thereafter. The Board has rephrased the issue listed on the title page to reflect that this is an initial rating claim. See Fenderson v. West, 12 Vet. App. 119 (1999) (where an appeal stems from an initial rating, VA must frame and consider the issue as to whether separate or "staged" ratings may be assigned for any or all of the retroactive period from the effective date of the grant of service connection in addition to a prospective rating). The Board notes that, in a VA Form 21-4138 filing received in September 1998, the veteran appears to have raised claims for entitlement to an earlier effective date for his award of compensation for COPD secondary to asbestosis and entitlement to a total disability rating for compensation on the basis of individual unemployability (TDIU). These claims are referred to the RO for appropriate action. FINDING OF FACT The veteran's COPD and asbestosis is manifested by PFT post- bronchodilator readings ranging from an FVC of 107 to 123% predicted, an FEV-1 of 115 to 127% predicted and an FEV-1/FVC of 69 to 77%. His DLCO (SB) has ranged from 71 to 101% predicted. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for COPD secondary to asbestosis have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, §§ 4.96, 4.97, Diagnostic Codes 6604 and 6833 (2000); 61 Fed. Reg. 46720 (Sept. 5, 1996); VCAA, Pub. L. No. 106-475, §§ 3-4, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act (VCAA) of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law requires VA to notify a claimant of the information and evidence necessary to substantiate a claim and includes other notice and duty to assist provisions. See VCAA, Pub. L. No. 106- 475, §§ 3-4, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). These provisions are potentially applicable to the claim on appeal. VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096-2099 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Upon review of the record, the Board finds that VA has met the duty to assist and notice requirements under the VCAA. By virtue of a Statement of the Case (SOC) and multiple Supplemental Statements of the Case (SSOC), the veteran and his representative have been given notice of the information, medical evidence and/or lay evidence necessary to substantiate his claim. His May 2000 testimony before the Decision Review Officer (DRO) and argument presented on appeal demonstrates his understanding of the basic factual and legal requirements for an increased rating in this claim. He has also submitted all relevant private and VA clinical records in support of his claim. Without good cause, he failed to report for a hearing before the Board scheduled on June 12, 2001. In this case, the RO has provided him several VA examinations, to include a recent pulmonary function test (PFT) at a VA facility of his choice. The DRO has also suggested that he might consider obtaining a private PFT test in support of his claim. On appeal, the veteran has essentially argued that his July 1998 and June 1999 VA examination findings should be disregarded as erroneous based upon an allegation that his VA examiners were not competent to address the medical complexities of an asbestosis diagnosis. He further believes that the Board should rely exclusively on the findings made by his private "expert" pulmonologist. The record shows that respiratory specialists conducted his VA examinations. It further shows that, with the exception of a difference of opinion as to diagnosis, the underlying VA and private medical findings are virtually the same. As addressed below, his perceived discrepancies in the private and VA PFT readings stem from his cross-referencing of the pre- and post-bronchodilator PFT readings and not the examinations themselves. See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996) (VA assesses pulmonary function after bronchodilatation). His disagreement with VA findings through his own lay interpretations does not provide an adequate basis for rejecting the findings themselves. Based upon the above, the Board finds that the VA examination reports are adequate for rating purposes and that no reasonable possibility exists that any further assistance would aid in substantiating his claim. As the requirements of the VCAA have been met, the Board further finds that no prejudice accrues to the veteran in proceeding to the merits of his claim at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993) (the Board must consider whether a claimant will be prejudiced by addressing a question that has not been addressed by the RO); VA O.G.C. Prec. Op. 16-92 (July 24, 1992). The veteran contends that he is entitled to an evaluation in excess of 10 percent for his service connected COPD secondary to asbestosis. Briefly summarized, he was exposed to asbestos while serving aboard naval vessels during his period of active service. He had a 20+ year history of smoking 1 to 11/2 packs of cigarettes per day prior to 1982. In pertinent part, his private clinical records reveal his June 1995 complaint of shortness of breath upon climbing 2 flights of stairs or walking 200 hundred feet on a flat surface. At that time, his post-bronchodilator PFT demonstrated a Forced Vital Capacity (FVC) of 125% predicted, a forced expiratory volume in one second (FEV-1) of 135% predicted and an FEV- 1/FVC of 77%. His Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) was 102% predicted. Computerized tomography (CT) scan and x-ray findings in March 1996 were significant for mild interstitial prominence in the lung bases and fairly symmetrical apical pleural thickening bilaterally. By April 1997, the record establishes that the veteran held diagnoses of COPD, interstitial lung disease consistent with asbestos exposure/asbestos related disease and pleural thickening/pleural plaques consistent with asbestos exposure/asbestos related disease. His treatment regimen included Azmacort, Atrovent and Ventolin. An April 1997 PFT did not include any post-bronchodilator readings. He filed his claim for service connection by means of a formal application received on June 23, 1997. Thereafter, the veteran's private clinical records reflect a June 1997 assessment of "mild" COPD with some probable bronchitis. He was treated for tracheobronchitis with Amoxicillin the next month. His August 1997 post- bronchodilator PFT findings demonstrated an FVC of 123% predicted, an FEV-1 of 127% predicted and an FEV-1/FVC of 73% percent. His DLCO (SB) was 90% predicted. At this time, the examiner noted the absence of any significant PFT findings since the "essentially normal" PFT in June 1995. A September 1997 PFT did not include any post-bronchodilator readings for FVC or FEV-1, but did show pre-bronchodilator readings of 108% predicted for both. His DLCO (mL/min/mm Hg) was 85%. On VA general medical examination, dated in December 1997, the veteran primarily complained of an inability to work due to shortness of breath since approximately 1990. His shortness of breath occurred upon 50 feet of exertion. His physical examination revealed clear lungs bilaterally. It was noted that previous CT scan and x-ray findings were consistent with asbestosis, but that the PFT findings were normal. Upon this record, the VA examiner opined that it was certainly reasonable to presume that the veteran manifested asbestosis secondary to his history of asbestos exposure in service. By means of a rating decision dated in June 1998, the RO granted service connection for COPD secondary to asbestosis and assigned an initial 10 percent rating effective to the date of claim: June 23, 1997. This initial rating has remained continuously in effect. In August 1998, the veteran underwent VA respiratory examination. His PFT did not include any post-bronchodilator readings, but did show pre-bronchodilator readings of FVC of 114% predicted, FEV-1 of 117% predicted and FEV-1/FVC of 102%. His Dsb (mL/min/mm Hg) was 98%. The PFT interpreter noted that, despite suboptimal findings and possible suggestions of malingering, the veteran's spirometry, lung volumes and diffusing capacity were shown to be normal. There was a very mild little resting hypoxemia which could be attributed to obesity and ventilation perfusion (VQ) mismatch. On physical examination, he continued to complain of dyspnea on exertion at 50 feet. He also complained of a daily cough productive of clear to thick sputum. His treatment regimen included Combivent and a steroid inhaler. According to the examiner, the veteran appeared to have an excellent level of functioning without any significant quality of life impairment. His lungs demonstrated good air movement with no appreciable wheezes, rales or rhonchi. His prior PFT tests were consistent with "mild" COPD. An April 1999 examination of the veteran by Isabella K. Sharpe, M.D., F.A.C.P., reports her acceptance of a "B" reader interpretation that the veteran manifested asbestosis. Noting his complaints of dyspnea on exertion and shortness of breath, she recommended nebulizer treatment and PFT examination. His post-bronchodilator testing the next month demonstrated an FVC of 115% predicted, an FEV-1 of 115% predicted and an FEV-1/FVC of 69% percent. His DLCO (mL/min/mm Hg) was 71% predicted. He had pre- bronchodilator readings of FVC of 118% predicted, an FEV-1 of 109% predicted and an FEV-1/FVC of 64% percent. The examiner interpreted the results as showing moderate obstruction without significant immediate benefits from medication. On VA respiratory examination in June 1999, the VA examiner interpreted the veteran's May 1999 PFT results as showing normal-to-mildly increased lung volumes with mildly obstructive lung disease. There was no restrictive lung disease and a mild decrease in DLCO, mostly with maximum voluntary ventilation (MVV), which showed a poor exercise tolerance. According to the examiner, the PFT was consistent with mild COPD without the restrictive lung defect which could happen with interstitial disease such as asbestosis. It was noted, however, that a reported x-ray finding of asbestosis with pleural plaque or pleural disease was normally asymptomatic. The veteran showed no signs or symptoms of cor pulmonale, jugular vein distention (JVD), hepatomegaly or significant peripheral edema. The veteran's VA clinical records in July 1999 reveal that he was prescribed nebulizer treatment with Albuterol inhaler solution mixed with ipratropium bromide to be used four times per day. At that time, he denied shortness of breath and reported exercising as able. A September 1999 clinical record revealed his complaint of shortness of breath. At that time, his lungs were clear to auscultation bilaterally. His heart examination demonstrated regular rate and rhythm without murmurs. There was no evidence of JVD or bruits. His extremities were negative for cyanosis, clubbing nor edema. His x-ray examination findings remained unchanged. During his appearance at a personal hearing at the RO in May 2000, the veteran testified to a worsening of his shortness of breath and/or dyspnea on exertion. He also complained of a chronic productive cough. He reported a treatment regimen consisting of Azmacort, Atrovent, Ventolin, Nebulizer and antibiotics. He argued that his May 1999 PFT readings showing an FEV-1 of 64% predicted met the regulatory criteria for a 30 percent rating. He complained that his previous VA examiners were not qualified to assess his asbestosis disability and requested a PFT examination at a different VA facility. Per his request, the veteran was afforded a VA PFT in June 2000. His post-bronchodilator testing demonstrated an FVC of 107% predicted, an FEV-1 of 120% predicted and an FEV-1/FVC of 77%. His Dsb (mL/min/mm Hg) was 101% predicted. The examiner noted good cooperation with an assessment of a "normal lung function test." Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (2000). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2000). The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In its evaluation, the Board shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. VCAA, Pub. L. No. 106-475, §§ 3-4, 114 Stat. 2096, 2098-99 (2000) (codified as amended at 38 U.S.C. § 5107(b)). The Board has considered all the evidence of record, but has reported only the most probative evidence regarding the current degree of impairment which consists of records generated in proximity to and since the claims on appeal. See Francisco v. Brown, 7 Vet. App. 55 (1994). The severity of a respiratory disease is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. § 4.97. Special provisions regarding evaluation of respiratory conditions state as follows: "Rating coexisting respiratory conditions. Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 and 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation." 38 C.F.R. § 4.96(a) (2000) (emphasis original). In this case, the RO has assigned a 10 percent evaluation for COPD secondary to asbestosis under Diagnostic Code 6604. This rating contemplates COPD manifested by an FEV-1 of 71 to 80% predicted, or; FEV-1/FVC of 71 to 80%, or; DLCO (SB) of 66 to 80% predicted. A 30 percent rating is warranted when there is an FEV-1 of 56 to 70% predicted, or; FEV-1/FVC of 56 to 70%, or; DLCO (SB) of 56 to 65% predicted. The record also reflects that the veteran has been diagnosed and service connected for asbestosis. VA has concluded that FVC and DLCO measurements are more appropriate measures to evaluate the severity of interstitial diseases such as asbestosis. Under Diagnostic Code 6833, the currently assigned 10 percent rating contemplates asbestosis manifested by an FVC of 75 to 80% predicted, or; DLCO (SB) of 66 to 80% predicted. A 30 percent rating is warranted for an FVC of 65 to 74% predicted, or; DLCO (SB) of 55 to 65% predicted. In this case, the RO has not considered and applied Diagnostic Code 6833. Inasmuch as a rating under this diagnostic code does not involve any factual determinations beyond the "mechanical" process of comparing the PFT results to the numeric criteria in the rating schedule, the Board finds no prejudice accrues to the veteran in reviewing this issue without initial RO consideration. Bernard, 4 Vet. App. 384 (1993). The evidence in this case reflects the veteran's complaint of shortness of breath with dyspnea on exertion. He holds diagnoses of COPD and asbestosis. During the appeal period, his respiratory impairment has been objectively demonstrated by PFT post-bronchodilator readings ranging from an FVC of 107 to 123% predicted, an FEV-1 of 115 to 127% predicted and an FEV-1/FVC of 69 to 77%. His DLCO (SB) has ranged from 71 to 101% predicted. These measurements of his respiratory impairment fail to meet the criteria for a 30 percent evaluation under either Diagnostic Code 6604 or 6833. He is not entitled to separate evaluations for his COPD and asbestosis, nor is there any evidence to suggest that the severity of the overall disability would warrant elevation to the next higher rating of 30 percent. 38 C.F.R. § 4.96(a) (2000). As such, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for COPD and asbestosis during any time of the appeal period. In so concluding, the Board has considered the veteran's descriptions of his respiratory limitations, to include his argument that the private medical evidence of record holds greater weight. The Board accepts his private examiner's reports and findings as credible. Even limiting consideration to the private medical evidence, the criteria for an increased evaluation would not be met in this case. The veteran's argument that his May 1999 pre- bronchodilatation reading of an FEV-1 of 64% predicted should be used to establish a higher evaluation under Diagnostic Code 6604 holds no merit, as post-bronchodilatation readings reflect the extent of the disabling manifestations of the service connected conditions. The veteran's own lay interpretation of his PFT results hold no probative value. Robinette v. Brown, 8 Vet. App. 69 (1995). There is no doubt to be resolved in his favor. The Board finally notes that review of the record does not indicate that the RO has expressly considered referral of the veteran's claim for an increased evaluation for COPD secondary to asbestosis to the VA Undersecretary for Benefits or the Director, VA Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). A referral under this provision is only warranted where the disability in question presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VA O.G.C. Prec. Op. 6-96 (Aug. 16, 1996). ORDER An evaluation in excess of 10 percent for COPD secondary to asbestosis is denied. C.W. Symanski Member, Board of Veterans' Appeals