Citation Nr: 1115651 Decision Date: 04/21/11 Archive Date: 05/04/11 DOCKET NO. 09-48 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an initial compensable rating for asbestosis. REPRESENTATION Appellant represented by: Oregon Department of Veterans Affairs ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from February 1959 to September 1962. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of September 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. FINDING OF FACT The Veteran's asbestosis does not result in forced vital capacity (FVC) of 75 to 80 percent of predicted or diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) of 66 to 80 percent of predicted CONCLUSION OF LAW The criteria for a compensable initial rating for asbestosis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6833 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases such as this 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 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. In any event, prior to the initial award of service connection, the Veteran was informed how disability ratings are assigned. He was then notified that his claim was awarded with a specific rating assigned and informed how to appeal that decision, and he did so. He was provided a statement of the case that advised him of the applicable law and rating criteria, and the claim was readjudicated in the February 2010 supplemental statement of the case. Mayfield, 444 F.3d at 1333. Furthermore, the record reflects that the appellant was provided a meaningful opportunity to participate effectively in the processing of his claim such that any notice error did not affect the essential fairness of the adjudication now on appeal. Moreover, the record shows that the appellant was represented throughout the adjudication of his claim. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. VA has obtained service medical records, assisted the Veteran in obtaining evidence, and afforded the Veteran the opportunity to give testimony before the Board. VA afforded the appellant examinations which are adequate for ratings purposes: the examiners elicited medical histories from the Veteran and conducted the appropriate examination, and the Veteran has not contended that either examination is inadequate or that his condition has changed (i.e. worsened) since the 2008 pulmonary function testing was conducted or since the 2010 physical examination was conducted. The Board acknowledges that the Veteran did not undergo pulmonary function testing or a chest X-ray in conjunction with the 2010 examination. The examination record indicates that the Veteran declined to participate in this testing however, so the Board finds the absence of this testing does not render the 2010 examination inadequate. The Board further acknowledges that the VA examiners did not review the claims file. However, the examiners did elicit medical histories from the Veteran, which were consistent with that contained in the claims folder; hence, consideration of the current disability status was made in view of the Veteran's medical history, as required by 38 C.F.R. §§ 4.1 and 4.2. As this matter is a claim of increase rather than of service connection, and as the Veteran provided a medical history which was an adequate substitute for a review of the medical record, the Board finds that the examinations was adequate for rating purposes. Finally, the Board acknowledges that the Veteran indicated at the 2010 VA examination that he would undergo pulmonary function testing at a private medical facility and that, once he underwent such testing, he would submit the records. Review of the claims file reveals that the Veteran has not submitted any additional evidence. Moreover, he has not contended that he actually received any treatment subsequent to the 2010 VA examination. The Veteran is responsible for providing pertinent evidence in his possession. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). In this case, based on the absence of additional evidence, to include history, of outstanding medical records, the Board finds that all known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. 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. 38 C.F.R. § 4.14. In an appeal of an initial rating (such as in this case), consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will thus consider entitlement to "staged ratings." Asbestosis is rated under Diagnostic Code (DC) 6833. DC 6833 provides a 10 percent rating when forced vital capacity (FVC) is 75 to 80 percent of predicted or the diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) is 66 to 80 percent of predicted. March 2008 X-ray images revealed possible subtle calcifications overlying the left diaphragmatic surface and right apical pleural base density, consistent with either pleural thickening or subpleural fat. The interpreting radiologist indicated that a computerized tomography (CT) scan would reveal better findings. A CT scan was then performed, revealing scattered bilateral particularly right basilar parietal pleural calcification consistent with previous asbestos exposure, right hilar calcified lymph nodes, no apical pulmonary masses or suspicious pulmonary nodules, and mild LAD coronary calcification. An April 2008 stress test report reflects the Veteran's history of exertional dyspnea and chest pain. The report indicates that the stress echocardiogram was consistent with myocardial ischemia, that the hemodynamic response appeared normal, and that the Veteran clinically developed dyspnea at relatively low level of exercise without chest pain. A June 2008 VA examination record reflects the Veteran's history of increased fatigue which required him to stop any physical exertion. He also reported significant shortness of breath, predominantly when going uphill. The Veteran reported that he walked approximately one mile each day and mowed his own lawn, but he indicated that he had to go slow and stop and catch his breath approximately every 5 to 10 minutes. The Veteran also reported a recent diagnosis of cardiovascular disease, and he explained that an exercise tolerance test suggested coronary artery disease and an angiogram showed a complete blockage of a major vessel and a 50 percent blockage of another vessel. The Veteran denied a productive cough, sputum production, hemoptysis, or incapacitating episodes, and he indicated that he had never been treated for asthma or pulmonary disease. Examination revealed no evidence to suggest cor pulmonae, right ventricular hypertrophy, or pulmonary hypertension and no physical evidence to suggest restrictive disease. Pulmonary function testing (PFT) was conducted, which showed "normal lung function, in all aspects of the test:" FVC was 92 percent predicted and DLCO was 135% predicted. The examiner diagnosed the Veteran with asbestosis without evidence of malignancy or respiratory limitation. A June 2010 VA examination record reflects the Veteran's history of significant dyspnea on exertion. The Veteran denied any productive cough, hemoptysis, asthma, periods of incapacitation, or pulmonary treatment. Examination revealed no evidence of restrictive disease. The examiner diagnosed the Veteran with asbestosis without significant respiratory impairment. The record indicates that the Veteran felt claustrophobic during the PFT and wanted to have it repeated at a different facility, where he would not be asked to be inside a booth with a closed door. In an addendum, the examiner noted that the Veteran failed to report for the PFT and chest X-ray and that although the Veteran was contacted on multiple occasions regarding completion of the testing, he indicated that he would have the testing done privately and forward the results. The examination record indicates the Veteran believed that his dyspnea was the result of his asbestosis. The examiner noted that he tried to educate the Veteran as to the effect of asbestosis on the lungs, explaining that a lack of smoking, as in the case of the Veteran, had been shown to be associated with a much lower morbidity from asbestos exposure and that the pathophysiology of asbestosis was very different in smokers and non-smokers, which might be the reason the Veteran had no significant reduction of respiratory function in the previous PFT. The examiner added that the Veteran's lungs were apparently tolerating his asbestosis and associated lung disease without any major impairment of function and that based on the "very minimal" changes on the previous PFT, the asbestosis should not be the cause of the Veteran's ongoing sense of dyspnea on exertion. Instead, the examiner believed the exertional dyspnea may be related to the reduced cardiac function secondary to an old infarct. After consideration of the evidence, the Board finds a compensable rating is not warranted at any part of the appellate period for the Veteran's asbestosis because the evidence does not indicated that FVC is 75 to 80 percent of predicted or DLCO (SB) is 66 to 80 percent of predicted. Rather, the evidence indicates that PFT was normal, with a FVC of 92 percent predicted and DLCO of 135% predicted. The Board acknowledges that the Veteran believes a compensable rating is warranted, in part, because of his exertional dyspnea. The medical evidence of record indicates that the dyspnea is not a manifestation of the asbestosis, however. Furthermore, even if the Board were to assume the dyspnea was a manifestation of asbestosis, a compensable rating would still not be warranted as neither DC 6833 nor any other rating criteria provide a compensable evaluation solely for dyspnea and based on the consistent findings that the Veteran's asbestosis is without significant impairment, the Board finds that the Veteran's asbestosis does not approximate any of the compensable rating criteria. As such, the Board finds a compensable rating is not warranted and the claim is denied. ORDER A compensable rating for asbestosis is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs