Citation Nr: 1237900 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 10-36 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial rating in excess of 30 percent for asbestosis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from May 1953 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of the Hartford, Connecticut Regional Office (RO) of the Department of Veterans Affairs (VA) which granted the Veteran's claim for service connection for asbestosis and assigned an initial rating of 30 percent. A review of the Virtual VA claims processing system reveals VA treatment records dated through April 2012. The Board remanded the instant matter in April 2011 and in August 2011. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's asbestosis manifested as FVC (Forced Vital Capacity) of 70 percent of predicted and DLCO (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) of 90 percent of predicted, both at worst and subjective complaints of shortness of breath on exertion; the record is negative for maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation on objective clinical evaluation, cor pulmonale, pulmonary hypertension or required oxygen therapy. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent rating for asbestosis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.96, 4.97, 6833 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011). The appeal with regard to the instant claim arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements are appropriately addressed under the notice provisions of 38 U.S.C. §§ 5104 and 7105. Hartman, supra. Where a claim has been substantiated after the enactment of the VCAA, a veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). There has been no allegation of prejudice with regard to the instant claim. The VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. §5103A; 38 C.F.R. §3.159(c)(d). VA will help a claimant obtain records relevant to his claim(s), whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of the instant claim. The evidence of record includes the service treatment records, VA treatment records, various private treatment records and the VA examination reports. An April 2010 VA examiner did not indicate that the Veteran's claims file had been reviewed. However, this examiner obtained a medical history and conducted a physical examination. An examination is not rendered inadequate merely because the claims file was not reviewed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). The Veteran has not alleged that his asbestosis has worsened since his last VA examination. Moreover, the VA examination report and the medical records may be accepted as adequate reports of examination of the Veteran, without further VA examination. 38 C.F.R. § 3.326. These medical reports provide evidentiary information that speaks directly to the Veteran's subjective complaints as well as to the objective findings found on evaluation, and they represent the actual evaluation results of the Veteran's participation in those clinical studies. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board remanded the instant claim in January 2011 to allow private respiratory treatment notes to be obtained. A VA respiratory examination was then to be conducted to determine the current severity of the Veteran's asbestosis. A January 2011 letter requested that the Veteran complete an appropriate authorization to allow the specific private treatment records to be obtained; the Veteran did not respond to this letter. Such a respiratory examination was conducted in March 2011. In August 2011, the Board again remanded the instant claim to allow private respiratory treatment notes to be obtained. Such records are contained in the claims file. The Board therefore concludes that there has been substantial compliance with the terms of the previous remands. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, there is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Therefore, the Board determines that VA has made reasonable efforts to the assist the Veteran in obtaining the evidence necessary to substantiate his claim. Increased Rating Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by a veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Asbestosis is rated under diagnostic code 6833 as interstitial lung disease. A 30 percent rating is warranted if the FVC is 65 to 74 percent of the value predicted or DLCO(SB) is 56 to 65 percent of value predicted. A 60 percent rating is warranted where the FVC is 50 to 64 percent of the value predicted; DLCO is 40 to 55 percent value predicted; or maximum exercise capacity is 15 to 20 ml/kg in oxygen consumption with cardiorespiratory limitation. A 100 percent rating is warranted if FVC is less than 50 percent of value predicted; DLCO is less than 40 percent value predicted; maximum exercise capacity is less than 15 ml/kg in oxygen consumption with cardiorespiratory limitation or; cor pulmonale or pulmonary hypertension; or requires oxygen therapy. 38 C.F.R. § 4.97, 6833. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are performed for disability evaluation purposes except in instances where the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done. Post-bronchodilator results are to be utilized in applying the evaluation criteria in the Rating Schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. The pre-bronchodilator values are to be used for rating purposes in those instances. 38 C.F.R. § 4.96(d)(5). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Asbestosis Claim A February 2008 private treatment note reflected the Veteran's complaints of intermittent dry cough and shortness of breath with exertion. Physical examination revealed clear breath sounds bilaterally with good air movement. A December 2007 PFT documented the FVC to be 70 percent of predicted and diffuse capacity was 93 percent of predicted. Chest computed tomography (CT) scans from October and November 2007 had were consistent with asbestos pleural disease including plaque and effusion, with associated rounded atelectasis. A January 2009 VA respiratory examination reflected the Veteran's reports of fatigue and exertional dyspnea which he believed to be related to his anti-hypertensive medications. Productive cough, sputum, a history of asthma or periods of incapacitation were denied. Physical examination revealed decreased breath sounds in the right base with rales rhonchi and no wheezing. Auscultation was clear bilaterally. An accompanying PTF found FVC to be 78 percent of value predicted and DLCO to be 90 percent of value predicted. Following this examination and a review of the Veteran's claims file, a diagnosis of asbestosis was made. A May 2009 VA treatment note contained an impression of asbestosis with minimally impaired pulmonary function tests. A November 2009 VA PFT documented FVC to be less than 75 percent of predicted. These results were taken pre-drug as post-bronchodilatory study results were not reported. A February 2010 private PFT documented FVC to be 76 percent of value predicted. These results were taken pre-drug as post-bronchodilatory study results were not reported. An April 2010 VA respiratory examination reflected the Veteran's reports of occasional sputum production and dyspnea on exertion. A history of asthma, current treatment, debilitating episodes, hospitalizations or emergency department visits were denied. Physical examination found his lungs to have good airflow audible in all quadrants. There was no evidence on examination of respiratory failure, cor pulmonale or renovascular hypertension (RVH). Following this examination, a diagnosis of asbestosis with mild functional limitations was made. A March 2011 VA respiratory examination reflected the Veteran's reports of a progressive increase in shortness of breath and mild to moderate shortness of breath with activity. He was seen for an urgent visit in November 2010 due to shortness of breath and found to have a significantly elevated heart rate; he was then admitted to the hospital with a diagnosis of atrial fibrillation and acute diastolic heart failure. A pacemaker was subsequently installed. Oxygen treatment was denied. Physical examination found his lungs to be clear except decreased at the right base. There was no evidence of pulmonary hypertension, RVH, cor pulmonale, respiratory failure, pulmonary embolism or chronic thromboembolic disease. An accompanying PFT documented FVC to be 78 percent of predicted and DLCO to be 100 percent of predicted. The examiner opined that the PFT results were essentially unchanged and showed similarly reduced lung volumes with normal diffusion. A review of the Veteran's claims file and electronic medical records were noted. A May 2011 VA treatment note indicated that a recent PFT revealed mildly reduced FVC. An impression of a mild restrictive ventilatory defect was made. A July 2012 private PFT found FVC to be 82 percent of predicted. The provider opined that this PFT was consistent with mild restrictive ventilatory defect and that there had been no significant change since the prior study conducted two years ago. The Veteran's asbestosis manifested as FVC of 70 percent of value predicted and DLCO of 90 percent of value predicted, both at worst, with subjective complaints of shortness of breath on exertion. The clinical evidence is negative for, and the Veteran has not alleged, maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation on objective clinical evaluation, cor pulmonale, pulmonary hypertension, or oxygen therapy. A rating in excess of 30 percent for asbestosis is therefore not warranted for any period during the course of the appeal. 38 C.F.R. § 4.97, 6833. Extraschedular Consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if 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(1)(b). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular consideration when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Veteran's asbestos manifested as FVC of 70 percent of predicted and DLCO of 90 percent of predicted, both at worst, with subjective complaints of shortness of breath on exertion. These factors are contemplated by the rating criteria. There have been no reported factors outside the rating schedule. The Veteran was not employed during the course of the appeal but the unemployment is not shown to be due to asbestosis and marked interference with employment has not been demonstrated. Consideration of an extraschedular rating is not warranted. The Court has held that a total disability based upon individual unemployability (TDIU) is an element of all appeals for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. The Veteran wrote in an October 2008 statement that he retired from teaching in 1994. There is no indication in the claims file, and the Veteran has not alleged, that he was unable to obtain or maintain gainful employment due to service connected asbestos. Further consideration of TDIU due to his service connected asbestosis is not warranted. ORDER Entitlement to an initial rating in excess of 30 percent for asbestosis is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs