Citation Nr: 1123746 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 05-37 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating prior to August 22, 2009, and in excess of 10 percent thereafter, for pleural plaques due to asbestos exposure with pulmonary problems. 2. Entitlement to a total disability rating based in individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active military service from March 1963 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2002 and September 2004 by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Cleveland, Ohio, and St. Petersburg, Florida, respectively. The Veteran's claims file is currently assigned to the St. Petersburg RO. In connection with this appeal, the Veteran testified at a personal hearing before a Decision Review Officer in August 2005; a transcript of that hearing is associated with the claims file. The Board notes that the Veteran requested a hearing before a Veterans Law Judge sitting at the RO in his October 2005 substantive appeal. In November 2005, he stated that he desired a video conference hearing in lieu of an in-person hearing. Thereafter, in July 2006 and January 2007 statements, the Veteran's representative indicated the Veteran waived his right to a hearing and requested that his appeal be forwarded to the Board without a hearing. As such, the Board finds that the Veteran has withdrawn his request for a hearing. 38 C.F.R. §§ 20.702(e); 20.704(e). The Board observes that, as relevant, the September 2004 rating decision denied service connection for hypertension, with pulmonary problems and high blood pressure, as secondary to pleural plaques due to asbestosis exposure. (Emphasis added). In subsequent readjudications, namely the statement of the case (SOC) and supplemental statements of the case (SSOCs), the RO characterizes the issue as entitlement to service connection for hypertension as secondary to pleural plaques due to asbestosis exposure. Additionally, in the September 2004 rating decision, the SOC, and SSOCs, the Veteran's claimed pulmonary problems are included in his claim for a compensable rating for pleural plaques due to asbestos exposure. Moreover, the Veteran's representative, in his January 2009 Appellate Brief Presentation, clarifies that the Veteran has not claimed that his pulmonary problems are secondary to his hypertension. As such, the inclusion of pulmonary problems with the Veteran's hypertension claim in the September 2004 rating decision appears to be an inadvertent mistake. The Board also notes that, in the September 2004 rating decision, the RO treated the Veteran's claim for a compensable rating for pleural plaques due to asbestos exposure with pulmonary problems as an increased rating claim, stemming from a February 2004 claim. However, the Board finds that such claim is more appropriately viewed as an initial rating claim and has characterized it as such on the title page. Specifically, the Veteran was granted service connection for such disability and a noncompensable rating was assigned, effective April 20, 2001, in an August 2002 rating decision. In a September 2002 statement that was initially sent to the Board, but was forwarded to the RO, the Veteran titled such as a notice of disagreement and submitted arguments relevant to the severity of his service-connected respiratory disability. In a March 2009 decision, the Board denied entitlement to service connection for hypertension and granted service connection for adjustment disorder with mixed anxiety and depressed mood. The claim of entitlement to an initial compensable evaluation for pleural plaques due to asbestos exposure with pulmonary problems was remanded for additional development and adjudication. FINDINGS OF FACT 1. Prior to August 22, 2009, the Veteran's service-connected pleural plaques due to asbestos exposure with pulmonary problems was not productive of FVC of 75 to 80 percent predicted value, or DLCO (SB) of 66 to 80 percent predicted. 2. From and after August 22, 2009, the Veteran's service-connected pleural plaques due to asbestos exposure with pulmonary problems was not productive of FVC of 65 to 74 percent predicted, or DLCO (SB) of 56 to 65 percent predicted. CONCLUSION OF LAW The schedular criteria for an initial compensable evaluation prior to August 22, 2009, and in excess of 10 percent thereafter, for pleural plaques due to asbestos exposure with pulmonary problems have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.97, Diagnostic Codes 6825- 6833 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. By way of letters dated in July 2001, February, 2002, April 2004, May and October 2006, February 2007, and March 2009, the Veteran was furnished notice of the type of evidence needed in order to substantiate the claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this regard, the Board notes that the Court in Dingess v. Nicholson held that upon receipt of an application for service connection, VA is required to notify a claimant of what information and evidence will substantiate the elements of the claim for service connection, including that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Dingess, however, the Court also declared, that "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled." Id. at 491. Such is the case here, and therefore, no further VCAA notice is required with respect to the Veteran's claim for an initial higher disability rating for pleural plaques due to asbestos exposure; and under the circumstances, there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384 (1993); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). VA has also made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. In particular, the information and evidence associated with the claims file consists of the Veteran's service records, private and VA post-service treatment records and reports, VA examinations, Social Security Administration disability records, and written statements submitted by the Veteran and his representative in support of the claim. Based on the foregoing, there is no identified evidence that has not been accounted for with respect to the Veteran's claim, and under the circumstances of this case, VA has satisfied its duty to assist the Veteran. Accordingly, further development and further expending of VA's resources is not warranted. See 38 U.S.C.A. § 5103A. II. Increased rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Also, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran is service-connected for pleural plaques due to asbestos exposure with pulmonary problems, evaluated as noncompensable prior to August 22, 2009, and 10 percent disabling thereafter, under Diagnostic Code 6832. Diagnostic Codes (DCs) 6825 through 6833 are rated under the General Rating Formula for Interstitial Lung Disease. The interstitial lung diseases include Diagnostic Code 6825 (diffuse interstitial fibrosis, i.e., interstitial pneumonitis, fibrosing alveolitis), DC 6826 (desquamative interstitial pneumonitis), DC 6827 (pulmonary alveolar proteinosis), DC 6828 (eosinophilic granuloma of lung), DC 6829 (drug-induced pulmonary pneumonitis and fibrosis), DC 6830 (radiation-induced pulmonary pneumonitis and fibrosis), DC 6831 (hypersensitivity pneumonitis, i.e., extrinsic allergic alveolitis), DC 6832 (pneumoconiosis, i.e., silicosis, anthracosis, etc.), and DC 6833 (asbestosis). The General Rating Formula for Interstitial Lung Disease (DCs 6825 through 6833) provides that FVC of 75 to 80 percent predicted value, or; DLCO (SB) of 66- to 80-percent predicted, is rated 10 percent disabling. FVC of 65 to 74 percent predicted, or; DLCO (SB) of 56 to 65 percent predicted, is rated 30 percent disabling. 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, is rated 60 percent disabling. FVC less than 50 percent of predicted value, 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 (right heart failure) or pulmonary hypertension, or; requires outpatient oxygen therapy, is rated 100 percent disabling. 38 C.F.R. § 4.97. The medical evidence in this case consists of VA examinations and private and VA treatment records. The Veteran was afforded a pulmonary function test in March 2000 that indicated FVC of 81, and FEV1 of 89. A CT scan in February 2000 noted noncalcified pleural plaques surrounding both lungs. A January 2000 x-ray for chest pain found that the lung fields were clear of infiltrate, effusion, vascular congestion or pneumothorax. However, areas of pleural thickening were noted. A November 2000 x-ray of the chest was found to be normal. November 2000 pulmonary function test reveled FVC of 79 and 89 percent of predicted value, and FEV1/FVC of 110% and 105% of predicted value. A January 2001 CT of the chest indicated noncalcified pleural plaques bilaterally, stable since February 2000. A June 2001 CT of the chest revealed bilateral noncalcified pleural plaques/thickening noted without significant interval change from January 2001. In July 2001, Dr. A.K. stated that the Veteran had pulmonary problems secondary to asbestosis exposure. A December 2001 CT of the chest revealed mild bilateral noncalcified areas of pleural thickening without change from June 2001. The Veteran was afforded x-rays and a pulmonary function test in May 2002. The x-ray was indicated to be normal. The pulmonary test noted asbestos exposure in service. The physician noted that the Veteran had been informed in January 2000 that he had tests consistent with asbestos exposure. The Veteran reported that he felt pressure in this chest at rest and had dyspnea on exertions. A chest x-ray was indicated to show no pleural plaques. Pulmonary testing revealed FVC of 85 and 90 percent predicted value, FEV1/FVC of 113 and 121 percent predicted value, and DLCO (SB) of 128 percent predicted. The examiner indicated that the spirometry was normal and that there was significant improvement in the FEV1 after bronchodilators. He in indicated that lung volumes revealed mild restriction and the DCLO was well within normal limits. The Veteran was found to have asbestos exposure from military (greater) and civilian life (lesser). The Veteran was afforded a VA examination dated in June 2002 in connection with his claim. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran was noted to have a history of asbestos exposure in the military. The examiner reported that the Veteran, in approximately January 2000, was told that a x-ray and chest CT scan on the chest was consistent with asbestos exposure. At the time of the examination, the Veteran did not have dyspnea at rest, although he did occasionally feel pressure in his chest and had dyspnea on exertion. He could walk 20-30 minutes and climb two flights of stairs. The Veteran also had complaints of fatigue. On examination, the Veteran's lungs were clear to auscultation and percussion. As noted above, pulmonary testing dated in May 2002 reported FVC of 85 and 90 percent predicted value, FEV1/FVC of 113 and 121 percent predicted value, and DLCO (SB) of 128 percent predicted. The examiner indicated that the spirometry was normal and that there was significant improvement in the FEV1 after bronchodilators. He indicated that lung volumes revealed mild restriction and the DCLO was well within normal limits. In this regard, the examiner indicated that the pleural plaques were outside the lung themselves and would not be expected to cause an abnormality in the DCLO. The examiner also noted that a June 2002 CT scan revealed pleural plaques that were not calcified on the images. The Veteran was provided another VA examination dated in July 2004. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran was noted to have had a diagnosis of asbestosis in January 2000. The Veteran denied cough, hemoptysis, wheezing, or history of asthma. The Veteran reported that he could walk about one mile without difficulty. A pulmonary function test dated in July 2004 in connection with the examination showed FEV1/FVC ratio of 87%. A pulmonary function test in March 2004 was noted to suggest a severe restricted ventilator impairment, but a chest x-ray in July 2004 showed no acute finding. The Veteran was diagnosed with asbestosis and pleural plaques consistent with asbestosis. Restrictive lung disease was found to be as likely as not secondary to asbestosis. A January 2009 CT scan of the chest revealed no evidence of pulmonary artery embolus, no pneumothorax or hyperinflation, no pericardial or pleural effusion, and no ancillary, mediastinal, or hilar lymphadenopathy. The lungs were clear with stable pleural thickening in the posterior thorax on the left. Finally, the Veteran was afforded a VA examination in August 2009. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran reported increased dyspnea with exertion. The examiner noted that a spiral CT scan dated in July 2008 documented mild bilateral noncalcified pleural thickening unchanged from a study dated in August 2007. Another CT scan dated in July 2008 revealed bilateral noncalcified pleural plaques seen diffusely throughout the lungs. This was unchanged from a March 2007 CT scan. No suspicious lesions or adenopathy were seen, and there was no imaging evidence for asbestosis. Results of a pulmonary function test dated in August 2009 were FEV1 of 84 percent predicted value and 88 percent of predicted value post treatment, an FEV1/FVC of 83, and a DLCO of 22.4 or 79 percent of predicted value. Spirometry was within normal limits, but lung volumes revealed a decreased ERV consistent with obesity, decreased effort, or musculoskeletal abnormality. Diffusing capacity was normal. The Veteran was diagnosed with bilateral noncalcified pleural plaques - asymptomatic, secondary to asbestos exposure. The examiner indicated that there was no significant general occupational effects. Reviewing the evidence of record, the Board finds that the Veteran's medical findings do not warrant a compensable evaluation prior to August 22, 2009, or an evaluation in excess of 10 percent thereafter, for his pleural plaques due to asbestos exposure with pulmonary problems. In order warrant a higher evaluation prior to August 22, 2009, the Veteran's pleural plaques must be productive of FVC of 75 to 80 percent predicted value, or DLCO (SB) of 66 to 80 percent predicted. After August 22, 2009 a higher evaluation is not warranted unless the Veteran's pleural plaques is productive of FVC of 65 to 74 percent predicted, or DLCO (SB) of 56- to 65 percent predicted. The evaluations prior to August 22, 2009 show pulmonary test results of FVC of 81, FVC of 79 and 89 percent of predicted value, FEV1/FVC of 110% and 105% of predicted value, FVC of 85 and 90 percent predicted value, FEV1/FVC of 113 and 121 percent predicted value, DLCO (SB) of 128 percent predicted, and FEV1/FVC ratio of 87%. These test results do not warrant a higher evaluation in this case. In this regard, the Board notes that one test result showed FVC of 79, but as the bulk of the readings were well above this, this result is considered anomalous. The disability picture prior to August 22, 2009 more nearly approximates the criteria for a noncompensable evaluation. After August 22, 2009, pulmonary test results show FEV1 of 84 percent predicted value and 88 percent of predicted value post treatment, an FEV1/FVC of 83, and a DLCO of 22.4 or 79 percent of predicted value. These results indicate no more than a 10 percent evaluation. In light of the holding in Fenderson, supra, the Board has considered whether the Veteran is entitled to additional "staged" ratings for his service-connected pleural plaques, beyond the evaluations assigned in this case. Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated. The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In addition, with respect to the Veteran's claim, the Board has also considered the statements that his disability is worse. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability for his hearing loss, according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). 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 current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Also, the record does not establish that the schedular criteria are inadequate to evaluate the Veteran's disability so as to warrant assignment of a higher evaluation on an extra-schedular basis. In this regard, there is no showing that the Veteran's disability has resulted in marked interference with employment. In addition, there is no showing that the disability has necessitated frequent periods of hospitalization, or that it has otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence of such factors, the criteria for submission for assignment of extra-schedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 8 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial compensable evaluation prior to August 22, 2009, and in excess of 10 percent thereafter, for pleural plaques due to asbestos exposure with pulmonary problems is denied. REMAND With regard to the issue of entitlement to a TDIU listed on the cover page, the Board acknowledges that the RO has not developed or adjudicated this issue. However, the U.S. Court of Appeals for Veterans Claims has held that a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. In this regard, the Board notes that the Veteran's claims file contains a November 2001 report of the Veteran's treating physician at the Cleveland Clinic. This report states that the Veteran has been under his care for pulmonary problems secondary to asbestos exposure. The Veteran was also noted to be under care for hypertension and panic attacks. The physician stated that, due to these conditions, the Veteran has been unable to work. Therefore, after resolving any benefit of the doubt in favor of the Veteran under the provisions of 38 U.S.C.A. § 5107(b), the Board finds the evidence of record has reasonably raised the issue of entitlement to a TDIU as an element of the increased rating claim on appeal. Since entitlement to a TDIU is part of the Veteran's increased rating claim, the proper remedy here is for the Board to remand, rather than refer, the TDIU issue to the Agency of Original Jurisdiction (AOJ) for proper development and adjudication. And, while on remand, any necessary development with respect to the TDIU aspect of the Veteran's initial rating claim should be conducted. The record includes treatment records from the VA Medical Center in Cleveland. On remand, the AOJ should request any outstanding relevant treatment records. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with Veterans Claims Assistance Act of 2000 (VCAA) compliant notice regarding a claim for TDIU. 2. Request and associate with the claims file any outstanding relevant treatment records for the Veteran, to include from the Cleveland VAMC. See 38 C.F.R. § 3.159(c)(2). 3. Following the completion of the above, and any other development the AOJ deems necessary, the matter on remand should be readjudicated, to include expressly addressing whether an extraschedular rating is warranted for the Veteran's service-connected pleural plaques due to asbestos exposure and whether the Veteran is entitled to a TDIU rating. If the benefits sought are not fully granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the case is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs