Citation Nr: 0810838 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-35 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial compensable rating for a respiratory disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The veteran served on active duty from June 1951 to June 1955. This matter comes before the Board of Veterans' Appeals (Board) from a September 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted noncompensable service connection for a respiratory disorder (bilateral pleural plaques and calcifications due to asbestos exposure), effective April 29, 2002. FINDINGS OF FACT The competent medical evidence demonstrates that the veteran's respiratory disorder (bilateral pleural plaques and calcifications due to asbestos exposure) is currently manifested by a Forced Vital Capacity (FVC) of 101 percent predicted and a Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 88 percent predicted. CONCLUSION OF LAW The criteria for an initial compensable rating a respiratory disorder (bilateral pleural plaques and calcifications due to asbestos exposure) has not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.383, 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Code 6833 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2007). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Respiratory disorders are evaluated under DCs 6600 through 6817 and 6822 through 6847. Pursuant to 38 C.F.R. § 4.96(a), ratings under those diagnostic codes will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a) (2007). The veteran's respiratory disorder (bilateral pleural plaques and calcifications due to asbestos exposure) has been evaluated as noncompensably disabling under DC 6833. Under that diagnostic code, a 10 percent rating is warranted when the Forced Vital Capacity (FVC) is 75 to 80 percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted. A 30 percent rating is warranted for FVC of 65 to 74 percent predicted, or; DLCO (SB) of 56-65 percent predicted. A 60 percent rating is warranted for a 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 100 percent rating is warranted for FVC less than 50 percent predicted, or; 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 or pulmonary hypertension, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.118, DC 6833 (2007). The evidence of record reflects that the veteran underwent a September 2004 VA respiratory examination in which pulmonary function testing (PTF) was conducted post-bronchodilator therapy. At that time, the following post-bronchodilator PFT findings were reported: FVC of 101 percent predicted and DLCO (SB) of 88 percent predicted. These PFT findings do not warrant a compensable rating under DC 6833. Indeed, the requirements for higher rating under that diagnostic code, FVC of 75 to 80 percent predicted, or DLCO (SB) of 66 to 80 percent predicted, have not been demonstrated. There is no other evidence of record indicating that the veteran has undergone additional pulmonary function testing. Nor does the veteran contend that his respiratory disorder has worsened since his September 2004 VA examination. Therefore the Board finds that a compensable rating for a respiratory disorder (bilateral pleural plaques and calcifications due to asbestos exposure) is not warranted. The Board is sympathetic to the veteran's contentions regarding the severity of his service-connected respiratory disorder. However, the veteran's PFT results, as compared to the rating criteria, do not warrant a compensable rating for a respiratory disorder at any time since the effective date of service connection. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an initial compensable rating for a respiratory disorder, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in May 2004, December 2005, and March 2006, and a rating decision in September 2004. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the May 2005 statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained a medical examination in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER An initial compensable rating for a respiratory disorder is denied. _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs