Citation Nr: 0811011 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-33 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable evaluation for asbestosis with pleural plaques. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from July 1943 to February 1946 and from December 1947 to October 1949. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In March 2008, a Deputy Vice Chairman of the Board granted the veteran's motion to advance his case on the Board's docket, pursuant to 38 C.F.R. § 20.900(c) (2008). FINDING OF FACT The objective and probative medical evidence of record demonstrates that, while the results pulmonary function tests show that the veteran's forced vital capacity (FVC) is from 85 to 89 percent of what was predicted, and diffusion capacity of the lungs for carbon monoxide by the single breath method (DLCO (SB)) is 56 percent, all of the veteran's pulmonary impairment is due to his (non-service-connected) chronic obstructive pulmonary disease (COPD). CONCLUSION OF LAW The schedular criteria for an initial compensable evaluation for asbestosis with pleural plaques are not met. 38 U.S.C.A. §§ 1155, 5103-5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.97, Diagnostic Code 6833 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (hereinafter referred to as "the Court") held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not issued at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to content complying notice and proper subsequent VA process. Pelegrini, supra, at 120. The VA General Counsel has issued a precedent opinion interpreting the Court's decision in Pelegrini. In essence, and as pertinent herein, the General Counsel endorsed the notice requirements noted above, and held that, to comply with VCAA requirements, the Board must ensure that complying notice is provided unless the Board makes findings regarding the completeness of the record or as to other facts that would permit [a conclusion] that the notice error was harmless, including an enumeration of all evidence now missing from the record that must be a part of the record for the claimant to prevail on the claim. See VAOPGCPREC 7-2004 (July 16, 2004). Considering the decision of the Court in Pelegrini and the opinion of the General Counsel, the Board finds that the requirements of the VCAA have been satisfied in this matter, as discussed below. Also, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed Cir. 2007), that held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) applied to all five elements of a service connection claim. Id. In a letter evidently issued in March 2006, the RO provided the veteran with notice consistent with the Court's holding in Dingess. As the appellant's claim for an initial compensable rating for asbestosis is being denied, as set forth below, there can be no possibility of prejudice to him. As set forth herein, no additional notice or development is indicated in the appellant's claims. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although the notice was provided to the appellant after the initial adjudication, the appellant has not been prejudiced thereby. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only has the appellant been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. In a letter issued in July 2005, the RO informed the appellant of its duty to assist him in substantiating him claim under the VCAA and the effect of this duty upon him claim. We therefore conclude that appropriate notice has been given in this case. The appellant responded to the RO's communications with additional evidence and argument, thus curing (or rendering harmless) any previous omissions. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), requires that VA notify the claimant that, to substantiate a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. In this case, the Board is aware that the July 2005 VCAA letter does not contain the level of specificity set forth in Vazquez-Flores. However, the Board does not find that any such procedural defect constitutes prejudicial error in this case because of the evidence of actual knowledge on the part of the veteran and other documentation in the claims file reflecting such notification that a reasonable person could be expected to understand what was needed to substantiate the claims. See Sanders v. Nicholson, 487 F. 3d 881 (Fed. Cir. 2007). In this regard, the Board is aware of the veteran's September 2004 statement to the effect that he was "terminal" and that his May 2005 statement primarily concerns the effect his chronic obstructive pulmonary disease (COPD) and asbestosis has had on his employability and daily life. However, he also reported that he was in receipt of Social Security Administration (SSA) disability benefits since 1982 for residuals of a motor vehicle accident. It can only be concluded that he does not consider his asbestosis condition to have a significant effect on his employability. Therefore, the Board does not view the disability at issue to be impacted by the second requirement of Vazquez-Flores, and no further analysis in that regard is necessary. Finally, the August 2005 statement of the case (SOC) and the November 2005 supplemental statement of the case (SSOC) set forth the rating criteria applicable to the asbestosis disability. The veteran was accordingly made well aware of the requirements for increased ratings for this disability pursuant to the applicable rating criteria, and such action thus satisfies the third notification requirement of Vazquez- Flores. The Board concludes that the notifications received by the appellant adequately complied with the VCAA and subsequent interpretive authority, and that he has not been prejudiced in any way by the notice and assistance provided by the RO. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it appears that all obtainable evidence identified by the appellant relative to his claim has been obtained and associated with the claims file, and that he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board notes that the veteran was afforded VA examinations February and September 2005 and, in October 2005, a third VA physician provided an additional opinion regarding the level of impairment attributable to the veteran's service-connected asbestosis. As noted above, in his May 2005 written statement, the veteran reported receiving SSA disability benefits since 1982 due to an automobile accident, but did not assert, and the record does not reflect, that SSA considered the veteran disabled due to the disability at issue. Thus, he is not harmed by the absence of SSA records in the claims file, given that the issue at hand is the current disability level of the veteran's service-connected asbestosis. In fact, in an August 2005 signed statement, the veteran said that he had no other evidence of record, not currently associated with his service medical records from any other source needed to substantiate his current claim. Thus, for these reasons, any failure in the timing or language of VCAA notice by the RO constituted harmless error. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Factual Background The veteran contends that his service-connected asbestosis warrants an initial compensable rating. In his September 2004 written statement he said that he was "terminal" and, in his July 2005 notice of disagreement, maintained that under Diagnostic Code 6833, the "least award" (that apparently could be granted) is a 10 percent rating. The record reflects that, in a July 2005 rating decision, the RO granted service connection for asbestosis with pleural plaques and awarded a noncompensable disability evaluation. The RO based its determination, in large measure, upon a review of the veteran's service personnel records that described his work as a motor machinist mate, engineman, and aviation support personnel in service, that were occupations considered to produce probable exposure to asbestos. In May and June 2005 written statements, the veteran essentially clarified and confirmed his exposure his exposure to asbestos. He also gave a history of using tobacco products in service and since his discharge. Private medical records from Dr. W., dated during June and July 2004, indicate that the veteran had moderately severe COPD and asbestosis and was encouraged to quit smoking. It was noted that the veteran gave a history of smoking two to three packs of cigarettes per day but was currently down to one pack a day. Results of pulmonary function tests noted severe obstructive defect. Results of a chest x-ray were reported to show changes of COPD with bilateral pleural plaques; a computed tomography (CT) scan was reported to show pleural plaques and asbestosis. In February 2005, the veteran, who was 78 years old, underwent VA examination. According to the examination report, the veteran had a previous diagnosis of COPD. The veteran had a chronic productive cough and denied any hemoptysis. He had anorexia and dyspnea on exertion even with small steps. He denied a history of asthma. He reported that he had frequency of COPD attacks that led to incapacitation almost daily. On examination of the veteran's lungs, there were markedly decreased breath sounds, bilaterally, with small expiratory wheezes. His heart rate was regular but his heart sounds were distant. Results of pulmonary function tests performed by VA in February 2005 revealed FVC was 79 percent (85.5 percent post bronchodilator) of predicted value, and Forced Expiratory Volume in one second (FEVI) was 55.1 percent (57.6 percent post bronchodilator) of predicted value. There was a FEV1/FVC ratio of 52 percent (50 percent post bronchodilator). Moderate obstructive ventilatory defect with partial response to bronchodilator was noted. According to the VA examination report, the diagnoses were COPD (moderate obstructive ventilatory defect) and history of asbestos exposure. The VA examiner said there was no radiological or other evidence to suggest a relationship between COPD and asbestos exposure. In a later dated Addendum, the VA examiner said that the results of the pulmonary function tests did not reveal a restrictive defect that would be expected if the veteran had interstitial lung disease from asbestos. The veteran's chest x-ray raised the question of a pleural plaque on the left and a chest CT was requested to pursue this question. In September 2005, the veteran underwent another VA examination. The examination report indicates that the veteran was diagnosed with COPD some time ago and did not recall exactly when. His current symtoms included a productive cough on a daily basis but he denied any hemoptysis. He lost about five pounds in the last month that the examiner said sounded intentional. The veteran had severe dyspnea and came to the examination in a wheelchair. He said he was only able to walk between five and ten feet before he got short of breath. He was unable to go from the bedroom to the kitchen without getting short of breath. Current treatment included Combivent, flunisolide, and formoterol with no requirement for oxygen thus far. According to the veteran, the frequency of incapacitation was very rare. On examination, the veteran appeared to be well-hydrated and well-nourished. He was slightly cachetic and in no acute distress. He had a regular heart rate and rhythm. Examination of the lungs revealed diffuse rhonchi in all lung fields with a slight decrease in "AP" diameter. There was no significant cyanosis, clubbing or edema in the extremities. The examiner reviewed the results of the February 2005 pulmonary function tests, noting that the FVC was 79 percent of predictability, the FEVI was 55.1 percent of predictability, and the FEVI/FVC was 52 percent of predictability (all pre bronchodilator). The interpretation at that time was moderate obstructive ventilatory defect with partial response to bronchodilators. Further, according to the VA examination report, results of pulmonary function tests performed at the time of the September 2005 examination indicated that no bronchodilator was administered with this test. The FVC was 89 percent of predictability, the FEV1 was 58 percent of predictability, the FEV1/FVC was 50 percent of predictability, and the DLCO was 56 percent. The VA examiner said that all of this correlated to no significant or major change in lung values since February 2005. The diagnosis was COPD not requiring oxygen at the time. It was also noted that the veteran required a wheelchair due to dyspnea on exertion. The veteran's pulmonary function tests correlated to moderate obstructive ventilatory defect. In a subsequent statement dated the same day in September 2005, the VA examiner noted that a question was raised regarding what percentage of the veteran's respiratory complaints were associated with COPD and what percentage were associated with his asbestosis. It was noted that the VA examiner reviewed the veteran's medical records, including the February 2005 VA examination report. It was further noted that in some private medical records, it appeared that the veteran was diagnosed with asbestosis based on CT results, but the CT results were not in the claims file. A new CT scan was recommended and not yet completed. The VA examiner also said that results of the pulmonary function tests revealed a moderate obstructive ventilatory defect consistent with COPD with no restrictive component that would be consistent with asbestosis. The VA examiner said she lacked results of an old or current CT and pulmonary function tests that supported a diagnosis of restrictive disease. In an October 2005 Addendum, another VA physician said that the veteran's April 2005 chest CT showed severe bullous emphysema. There were areas of pleural thickening, many of which were calcified at each hemithorax. That raised the possibility of previous asbestos exposure. Further, the VA physician said that results of full pulmonary function tests performed in September 2005 showed normal lung volumes. Spirometry revealed a moderate obstructive ventilatory defect with no improvement after inhaled bronchodilators. Diffusion was moderately reduced and remained so when corrected for alveolar volume, considered consistent with loss of gas exchange surface. Then, this VA physician stated that, based on the above data, it was concluded that the veteran had evidence of prior asbestosis exposure "but no pulmonary impairment due to asbestos. All of [the veteran's] pulmonary impairment is due to his [COPD]". III. Legal Analysis The present appeal involves the veteran's claim that the severity of his service-connected asbestosis warrants a compensable disability rating. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service- connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes that the July 2005 rating decision granted service connection and an initial noncompensable disability evaluation for asbestosis with pleural plaques to which the veteran submitted a timely notice of disagreement with the disability evaluation awarded to his service-connected asbestosis disability. The Court has addressed the distinction between a veteran's dissatisfaction with the initial rating assigned following a grant of entitlement to compensation, and a later claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court noted that the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994) as to the primary importance of the present level of disability, is not necessarily applicable to the assignment of an initial rating following an original award of service connection for that disability. Rather, the Court held that, at the time of an initial rating, separate ratings could be assigned for separate periods of time based upon the facts found - a practice known as assigning "staged" ratings. See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (to the effect that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The veteran has been assigned a noncompensable rating for his asbestosis under 38 C.F.R. § 4.97 Diagnostic Code 6833. Ratings for asbestosis, as with many other diseases of the respiratory system, are based upon the results of pulmonary function testing. Accordingly, a 10 percent rating is assigned when the FVC is between 75 and 80 percent of what was predicted, or where the DLCO (SB) is between 66 and 80 percent of what was predicted. Id. A 30 percent rating is warranted for FVC of 65 to 74 percent, or a DLCO (SB) of 56 to 65 percent of the value predicted. Id. The objective and probative medical evidence shows at a pulmonary function test in February 2005, the veteran's FVC was measured as 85.5 percent of predicted value and, in September 2005, it was measured as 89 percent of the predicted value. DLCO (SB) was 56 percent. These findings correspond to a compensable rating under Diagnostic Code 6833 for asbestosis, noting the DLCO (SB) of 56 percent. However, in October 2005, a VA physician reviewed the results of the veteran's clinical tests and said that the veteran's April 2005 chest CT showed severe bullous emphysema, with areas of pleural thickening, many of which were calcified at each hemithorax that raised the possibility of previous asbestos exposure. The VA physician stated that full pulmonary function tests in Septemer 2005 showed normal lung volumes. Spirometry revealed a moderate obstructive ventilatory defect with no improvement after inhaled bronchodilators. Diffusion was moderately reduced and remained so when corrected for alveolar volume that was consistent with loss of gas exchange surface. In this VA physician's opinion, and "[b]ased on the above data, it is concluded that the veteran has evidence of prior asbestos exposure but no pulmonary impairment due to asbestos. All his pulmonary impairment is due to his [COPD]". When it is not possible to separate the effects of the service-connected condition and the non-service-connected condition or conditions, VA regulations at 38 C.F.R. § 3.102, requiring that reasonable doubt on any issue be resolved in the veteran's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). But here, a VA physician reviewed the veteran's medical records, described the clinical test findings and concluded that all of the veteran's pulmonary impairment is due to his non- service-connected COPD. The Board recognizes that the veteran has a moderate obstructive ventilatory defect that results in daily breathing difficulty. However, a VA examiner who reviewed the probative recent clinical test results concluded that all the veteran's pulmonary impairment was due to non-service- connected COPD. There is no competent medical evidence to contradict this opinion. Thus, there is no objective medical evidence to support the criteria for a compensable evaluation for the veteran's service-connected asbestosis with pleural plaques. Given the foregoing observations, the Board finds that, under the above-cited criteria, the preponderance of the evidence is against an initial compensable rating for the service- connected asbestosis. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6833. Finally we note that, in view of the holding in Fenderson, supra, the Board has considered whether the veteran is entitled to a "staged" rating for his service-connected asbestosis, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time since the veteran filed his original claim for service connection has the disability on appeal been more disabling than as currently rated under the present decision of the Board. ORDER An initial compensable evaluation for asbestosis with pleural plaques is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs