Citation Nr: 1237667 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 08-16 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a higher initial disability rating for service-connected asbestosis, rated as noncompensably disabling as of April 30, 2007, and as 10 percent disabling as of November 29, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to February 1966. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia that granted the Veteran's claim of entitlement to service connection for asbestosis. The Veteran filed a notice of disagreement with respect to the noncompensable evaluation assigned, and in May 2008, the RO increased the evaluation assigned to 10 percent, effective November 29, 2007. However, as that grant did not represent a total grant of benefits sought on appeal, the claim for an initial increased rating remained on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran requested and was scheduled for a Travel Board hearing on September 21, 2010. However, the Veteran notified VA in August 2010 that he was withdrawing his request for a hearing. In November 2010, the Board issued a decision in the above matter. Prior to promulgation of this decision, however, the RO received additional evidence. The Board was unable to consider this evidence as it has not been received by the Board and associated with the claims file prior to the Board's promulgation of the November 2010 decision. In August 2011, the Board issued an order to vacate of the above referenced claim. Additionally, the Board remanded the Veteran's claim for further examination. This development has now been completed and the claims have been returned to the Board for adjudication. FINDINGS OF FACT 1. For the period from April 30, 2007, the effective date of service connection, to November 28, 2007, the Veteran's respiratory disorder (asbestosis) was manifested by a Forced Vital Capacity (FVC) of no less than 100 percent predicted and a Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of no less than 104 percent predicted. 2. From November 29, 2007 to September 2, 2010, the Veteran's respiratory disorder (asbestosis) has been manifested by a Forced Vital Capacity (FVC) of no less than 84 percent predicted and a Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of no less than 67 percent predicted. 3. Since September 3, 2010, the Veteran's respiratory disorder (asbestosis) has been manifested by a Forced Vital Capacity (FVC) of no less than 95 percent predicted and a Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of no less than 65 percent predicted. CONCLUSIONS OF LAW 1. For the period from April 30, 2007, the effective date of service connection, to November 28, 2007, the criteria for an initial compensable rating for asbestosis were not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.383, 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Code 6833 (2011). 2. From November 29, 2007 to September 2, 2010, the criteria for rating in excess of 10 percent for asbestosis have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.383, 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Code 6833 (2011). 3. Since September 3, 2010, the criteria for an increased disability rating of 30 percent, but no higher, for asbestosis have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.383, 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Code 6833 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 U.S.C.A. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran's claim arises from his disagreement with the initial evaluation assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for this claim. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining VA and private medical records and providing the Veteran with VA examinations in September 2007, November 2007, May 2008, November 2008, and April 2009. Additionally, the Board finds there has been substantial compliance with its August 2011 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the Appeals Management Center (AMC) obtained the Veteran's outstanding VA treatment records. The AMC later issued a rating decision and a supplemental statement of the case in June 2012. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2011). The Veteran's representative contends that the April 2009 VA examination pulmonary test results were not included in the claims file. The VA examination report is of record and contains the results of the Veteran's pulmonary tests, which are part of the rating criteria. Additionally, the Veteran has not indicated that he has received additional treatment for his service-connected asbestosis. The Board thus concludes that there are no additional records outstanding with respect to that claim. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Initial Increased Ratings 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 (2011). 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 (2011). 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 (2010). 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) (2011). The Veteran's respiratory disorder (asbestosis) 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 (2011). The minimum disability rating provided under Diagnostic Code 6833 is 10 percent. Nevertheless, in every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2011). The Board finds that the evidence of record warrants consideration of entitlement to staged ratings, or different percentage ratings for different periods from April 30, 2007, when service connection became effective, to November 28, 2007, and from November 29, 2007 to the present. Fenderson v. West, 12 Vet. App. 119 (1999). A. April 30, 2007 to November 28, 2007 The pertinent evidence during this period reflects that the Veteran underwent a March 2007 private respiratory examination and September 2007 VA respiratory examination in which pulmonary function testing (PTF) was conducted post-bronchodilator therapy. In March 2007, the Veteran endured PFT at the Lung Diseases and Sleep Disorders Clinic. The PFT revealed a FVC of 118 percent predicted and DLCO (SB) of 104 percent predicted. At that time, there was no diagnosis recorded. Upon filing his original claim, the Veteran was afforded a VA examination in September 2007. The PFT revealed a FVC of 100 percent predicted. A DLCO (SB) was not performed. The examiner diagnosed the Veteran with asbestosis due to asbestos exposure. As previously stated, the post-bronchodilator PFT findings were that the FVC were no less than 100 percent predicted and DLCO (SB) were no less than 104 percent predicted. These PFT findings do not warrant a compensable rating under DC 6833. Indeed, the requirements for a higher 10 percent disability 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. The Veteran's main argument is that he should be compensated at a higher rating for asbestosis from April 30, 2007 to November 28, 2007. The medical evidence simply does not support the Veteran's contention. Therefore, a higher rating is not warranted. The Board concludes his overall level of disability more nearly approximates that consistent with a noncompensable disability rating. The findings in the March 2007 private respiratory examination and September 2007 VA respiratory examination reports support this conclusion. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to a compensable disability rating for asbestosis from April 30, 2007 to November 28, 2007, must be denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2011). B. November 29, 2007 to September2, 2010 The pertinent evidence during this period reflects that the Veteran underwent November 2007, May 2008, and November 2008 private testing, and an April 2009 VA respiratory examination in which pulmonary function testing (PFT) was conducted post-bronchodilator therapy. The Veteran endured multiple respiratory examinations at the Lung Diseases and Sleep Disorders Clinic in Princeton, West Virginia. In November 2007, the Veteran's PFT revealed an FVC of 85 percent predicted and DLCO (SB) of 78 percent predicted. The Veteran underwent further PFT in May 2008 at the Clinic. The PFT revealed a FVC of 93 percent predicted and DLCO (SB) of 70 percent predicted. The last examination on record performed by the Clinic was in November 2008. The PFT revealed a FVC of 99 percent predicted and DLCO (SB) of 67 percent predicted. Additionally, the Veteran was afforded a VA examination in April 2009. The PFT revealed a FVC of 84 percent predicted and DLCO (SB) of 73 percent predicted. The examiner diagnosed the Veteran with asbestosis. As previously stated, the Veteran's pulmonary function testing showed the FVC was no less than 84 percent predicted and DLCO (SB) was no less than 67 percent predicted throughout November 29, 2007 to September 2, 2010. These PFT findings do not warrant a rating in excess of 10 percent under DC 6833. Indeed, the requirements for a higher 30 percent disability rating under that diagnostic code, FVC of 65 to 74 percent predicted, or DLCO (SB) of 56 to 65 percent predicted, have not been demonstrated. The Veteran's main argument is that he should be compensated at a higher rating for asbestosis from November 29, 2007 to September 2, 2010. The medical evidence simply does not support the Veteran's contention. Therefore, a higher rating is not warranted. The Board concludes his overall level of disability more nearly approximates that consistent with a 10 percent disability rating. The findings in the November 2007, May 2008, and November 2008 private testing, and the April 2009 VA respiratory examination support this conclusion. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to a disability rating in excess of 10 percent for asbestosis from November 29, 2007 to September 2, 2010, must be denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2011). C. September 3, 2010 to the Present The pertinent evidence during this period reflects that the Veteran sought VA outpatient treatment in September 2010, at which time pulmonary function testing (PFT) was conducted post-bronchodilator therapy. VA outpatient treatment records show that the Veteran underwent additional pulmonary function testing in September 2010. The PFT revealed a FVC of 95 percent predicted and DLCO (SB) of 65 percent predicted. The Board points out that VA outpatient treatment records contain a December 2010 pulmonary procedure consult report. At that time, a cardiopulmonary stress test was performed. While the physician noted the Veteran's pulmonary stress, the test did not contain the FVC or DLCO percentages, which are used in the rating criteria and needed in order to adequately rate the Veteran's respiratory condition. Therefore, this report is not adequate for rating purposes. As previously stated, the September 2010 pulmonary function testing showed the FVC was no less than 95 percent predicted and DLCO (SB) was 65 percent predicted since September 3, 2010. These PFT findings warrant a higher 30 percent disability rating under DC 6833. Indeed, the requirements for higher 60 percent rating under that diagnostic code, 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, have not been demonstrated. The Board finds that the severity of the Veteran's asbestosis justify assigning a higher disability rating of 30 percent. Mauerhan v. Principi, 16 Vet. App. 436 (2002). All reasonable doubt has been resolved in favor of the Veteran in making this decision. The preponderance of the evidence is for the assignment of a higher 30 percent rating for the Veteran's asbestosis, since September 3, 2010. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Extraschedular Consideration The above determinations are based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2011). However, the regulations also provide for exceptional cases involving compensation. Ratings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that VA shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in exceptional cases is a finding that the case 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. 38 C.F.R. § 3.321(b)(1) (2011). The Board finds in this case that the regular schedular standards are not inadequate. The evidence of record does not reflect that the Veteran has ever reported an inability to work due to his asbestosis. Nor has the Veteran's asbestosis been shown to warrant frequent, or, indeed, any periods of hospitalization throughout the relevant appeals period, or to otherwise render impractical the application of the regular schedular standards. In light of the above, the Board finds that remand for referral for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER From April 30, 2007, the effective date of service connection, to November 28, 2007, an initial compensable disability rating for a respiratory disorder is denied. From November 29, 2007 to September 2, 2010, a rating in excess of 10 percent for a respiratory disorder is denied. Since September 3, 2010, a higher 30 percent disability rating for a respiratory disorder is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs