Citation Nr: 1300734	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  96-04 262	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to an initial compensable disability rating for asbestosis with pleural plaques, from November 23, 1993 to May 20, 1998.

2.  Entitlement to an initial compensable disability rating for asbestosis with pleural plaques, from May 21, 1998 to November 7, 2002.

3.  Entitlement to an initial disability rating in excess of 30 percent for asbestosis with pleural plaques, since November 8, 2002.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

L. J. Wells-Green, Counsel


INTRODUCTION

The Veteran served on active duty from March 1960 to February 1964.  

This matter came to the Board of Veterans' Appeals (Board) on appeal from a rating decision in June 1995 of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  The case was subsequently transferred to the RO in San Diego, California.

In October 1999 and February 2012 the Board remanded the case for further development.  The case has been returned to the Board for further appellate action.  

The issues have been recharacterized to comport with the evidence of record.

The issue of entitlement to an initial disability rating in excess of 30 percent for asbestosis with pleural plaques, since November 8, 2002, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  From November 23, 1993 to May 21, 1998, the Veteran's asbestosis with pleural plaques was asymptomatic with no complaints of chest pain, and no competent evidence of obliteration of costophrenic angles or tenting of diaphragm.  

2.  As of May 21, 1998, pulmonary function testing (PFT) reflects FVC values of 78 and 79 percent of predicted value; PFT reflects FVC values of no less than 78 percent of predicted value or DLCO of 65 percent or less of predicted value.  



CONCLUSIONS OF LAW

1.  The criteria for an initial compensable disability rating for asbestosis with pleural plaques, from November 23, 1993 to May 20, 1998, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6810 (1995); 4.97, 38 C.F.R. § 4.97, Diagnostic Code 6833 (2012).

2.  The criteria for an initial 10 percent disability rating, and no more, for asbestosis with pleural plaques, from May 21, 1998 to November 7, 2002, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6810 (1995); 4.97, 38 C.F.R. § 4.97, Diagnostic Code 6833 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties To Notify And Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.

The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The Veteran's VA medical treatment records, and private treatment records have been obtained; he did not identify any private/VA treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159(c)(2).  VA examinations were conducted in July 1994 and May 1998; the Veteran has not argued, and the record does not reflect, that these examination were inadequate for rating purposes.  38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  These examinations in aggregate with medical treatment records are adequate as they are predicated on examinations of the Veteran and fully addressed the rating criteria relevant to evaluating the Veteran's service-connected asbestosis.  

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims files.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 at 486 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).

Analysis

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.  38 C.F.R. § 4.7.  

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made.  Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found.  Id.  

During the pendency of the Veteran's appeal, the applicable rating criteria relating to the respiratory system was amended effective October 7, 1996.  See 38 C.F.R. § 4.97, Diagnostic Code 6810 (1996), amended by 38 C.F.R. § 4.97, Diagnostic Code 6833 (1997); [61 Fed.Reg. 46720-46731 (Sept. 5, 1996)].  

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question.  38 U.S.C.A. § 5110(g).  Since the amendment has a specified effective date without provision for retroactive application, it may not be applied prior to its effective date.  As of October 7, 1996, whichever version of the rating criteria is more favorable to the veteran must be applied.  

The RO has addressed both the previous rating criteria and the new amendments in its January 1999 supplemental statement of the case.  These amendments may be considered without first determining whether doing so would be prejudicial to the Veteran.  Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

Under the previous version of the rating criteria, Diagnostic Code 6810 provides a maximum 10 percent evaluation with evidence of diaphragmatic pleurisy, pain in chest, obliteration of costophrenic angles, or tenting of the diaphragm.  Otherwise, lung disabilities analogous to chronic fibrous pleurisy were considered a nondisabling condition.  38 C.F.R. § 4.97, Diagnostic Code 6810.  

Under the revised version of the rating criteria, Diagnostic Code 6833 provides a 10 percent evaluation for Forced Vital Capacity (FVC) of 75 to 80 percent predicted value, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO) of 66 to 80 percent predicted.  A 30 percent evaluation is warranted for FVC of 65 to 74 percent predicted, or; DLCO of 56 to 65 percent predicted.  A 60 percent evaluation is warranted for FVC of 50 to 64 percent predicted, or; DLCO 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 evaluation is warranted for FVC less than 50 percent of predicted value, or; DLCO 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.  38 C.F.R. § 4.97, Diagnostic Code 6833.  

The overwhelming majority of the Veteran's VA treatment records dating from November 1993 to October 7, 1996, either indicate that his asbestosis was asymptomatic despite changes noted on periodic chest X-ray studies or that he experienced no shortness of breath, chest pain, weight loss or exertional dyspnea.  A February 1995 progress note, however, indicates significant chest X-ray changes and minimal symptoms.  The examination report specifically states that he did not experience shortness of breath, difficulty breathing or weight loss.  While the examiner did not address whether the Veteran had chest pain, diaphragmatic pleurisy, and obliteration of costophrenic angles or tenting of the diaphragm, the Veteran does not assert that he experienced any of these symptoms at that time.    Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  

There were no PFTs administered between October 7, 1996 (which is when the revised regulations became effective) and May 21, 1998,  and, accordingly, it is not possible to rate the Veteran under the revised regulations, dating from October 7, 1996 to May 20, 1998. 

Although the May 21, 1998 VA compensation examination report indicates that the Veteran's asbestosis was asymptomatic at that time, the PFT administered shows a FVC of 79 percent predicted.  Likewise, February 2000 PFT studies show FVC of 78 percent predicted.  Although these values are pre-bronchodilator studies and not post-bronchodilator studies as required for the rating criteria, the examiners, in both instances apparently determined that post-bronchodilator studies were unnecessary.  

While there are several PFT tests during this period which contain FVC scores that would not qualify for a compensable rating, the evidence is, at worst, in equipoise and, resolving all reasonable doubt in favor of the Veteran, a 10 percent rating is warranted.

During this period, there are no findings of FVC of 74 percent or less predicted, or; DLCO of 65 percent or less predicted.  Thus, an evaluation in excess of 10 percent is not warranted prior to November 8, 2002.

The evidence does not show such an exceptional disability picture that the available schedular evaluations for service-connected asbestosis with pleural plaques are inadequate.  A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability levels and symptomatology.  There are higher ratings available under the diagnostic codes for asbestosis during the above-mentioned time periods, but the Veteran's asbestosis was not productive of such manifestations during the evaluation period.  As such, it cannot be said that the available schedular evaluations are inadequate.  Thun v. Peake, 22 Vet. App. 111 (2008)

A claim for a total evaluation due to individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Board has jurisdiction to consider the Veteran's possible entitlement to TDIU rating when the issue is raised by an assertion or is reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue.  In this case, the Veteran has been employed during almost the entirety of the appellate period.  The February 2012 VA examiner noted that the Veteran had worked until the last year when he was "forced into retirement."  He has not indicated, and the record does not show, that his asbestosis with pleural plaques precludes him from obtaining substantial employment.  As such, the issue of entitlement to a total disability rating based on TDIU has not been raised.


ORDER

Entitlement to an initial compensable disability rating for asbestosis with pleural plaques, from November 23, 1993 to May 20, 1998, is denied.

Entitlement to an initial 10 percent disability rating, and no more, for asbestosis with pleural plaques, from May 21, 1998 to November 7, 2002 is granted.


REMAND

The February 2012 remand noted that the most recent VA examinations used to evaluate the Veteran's asbestosis with pleural plaques failed to include, without explanation, the required DLCO findings.  38 C.F.R. § 4.96(d)(2).  

The remand required that the Veteran be provided another VA examination to assess the current severity of his asbestosis with pleural plaques, and directed that the examiner specifically provide FVC and DLCO findings as well as provide an opinion regarding his maximum exercise capacity and the degree of impairment due to his asbestosis.  

The February 2012 VA respiratory examiner provided the pre-bronchodilator FVC and DLCO findings; however, post-bronchodilator studies were not conducted in compliance with 38 C.F.R. § 4.96(d)(4), and the examiner did not state why the post-bronchodilator studies should not be done.  Further, the examiner did not provide an estimate of the Veteran's maximum exercise capacity due to his asbestosis, as necessary to adequately assess the current severity of his disability. 

Given VA's failure to comply with the Board's remand directives, the claim must again be remanded.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for another examination to determine the current severity of his service-connected asbestosis with pleural plaques.  The claims folder must be made available to and reviewed by the examiner in conjunction with the examination.  All necessary tests must be accomplished, to include pulmonary function tests with pre and post-bronchodilator FVC and DLCO findings.  If the examiner determines that post-bronchodilator studies should not be done, he/she must state why not.  The examiner must also provide an opinion in regard to the Veteran's maximum exercise capacity and the degree of impairment due to asbestosis with pleural plaques.  A complete rationale for all opinions expressed must be given.  

2.  Review the examination report to ensure complete compliance with the directives of this remand.  If deficient in any manner, implement corrective procedures.

3.  After completing the above actions, and any other development indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the issue on appeal.  If the issue remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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. 2012).



______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs