Citation Nr: 1305510 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 11-32 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of a cold weather injury, to include polyneuropathy. 2. Entitlement to an increased rating for pleural plaques due to asbestos exposure, currently rated 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from September 1950 to December 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2007 and September 2009 rating decisions of the United States Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO), which, in pertinent part, denied an increased rating for service-connected pleural plaques, and denied service connection for residuals of a cold weather injury. In the September 2009 rating decision, the RO also denied service connection for hearing loss and tinnitus; however, in a September 2011 rating decision, the RO granted the claims of service connection for hearing loss and tinnitus. As such, those issues are no longer on appeal. The Veteran was initially scheduled for a Travel Board hearing before a Veterans Law Judge in February 2012. This hearing was postponed upon his request. The hearing was rescheduled for May 2012, but the Veteran failed to report. As such, his hearing request is deemed withdrawn. In July 2012, the Board remanded the issues of entitlement to service connection for residuals of a cold weather injury, to include polyneuropathy and entitlement to an increased rating for pleural plaques due to asbestos exposure, currently rated 30 percent disabling. The case has returned to the Board for appellate review. The issue of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the Veteran's service connected pleural plaques, has been raised by the record-see the Veteran's July 2008 claim for an increased rating-but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Axonal sensory polyneuropathy had its onset in service. 2. The Veteran's pleural plaques due to asbestos exposure is not characterized by Forced Vital Capacity (FVC) less than 65 percent predicted; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 56 percent predicted; maximum exercise capacity of 20 ml/kg/min or less of oxygen consumption with cardiorespiratory limitation; or cor pulmonale, pulmonary hypertension, or required outpatient oxygen therapy. CONCLUSIONS OF LAW 1. Axonal sensory polyneuropathy was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.156(b), 3.303 (2012). 2. The criteria for a disability rating in excess of 30 percent for pleural plaques due to asbestos exposure have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.96, 4.97, Diagnostic Code (DC) 6899-6833 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the claim of entitlement to service connection for residuals of a cold weather injury, to include polyneuropathy, the Board grants the Veteran's claim in full. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. With respect to the claim of entitlement to an increased rating for pleural plaques due to asbestos exposure, currently rated 30 percent disabling, VA has a duty to provide the Veteran with notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements regarding an increased rating were accomplished in January 2007 and August 2008 letters that were provided before the adjudication of the claim. The letters notified the Veteran of the information and evidence needed to substantiate his increased rating claim. He was told that the evidence must show that his service-connected disability had gotten worse. The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). This claim was remanded by the Board for additional development in July 2012. There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA contacted the Veteran to request additional information in July 2012 and August 2012, and obtained the Veteran's September 2011 pulmonary function test (PFT) results. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). The Board finds that the June 2007, September 2009, and August 2011 VA examination reports are adequate because the examiners reviewed the Veteran's claims file and medical records, described the Veteran's service-connected pleural plaques in sufficient detail, and supported their conclusions with objective test results. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service and VA treatment records, as well as service personnel records, have been obtained, and he has been provided with VA examinations in connection with the present claim. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. Further, he failed to appear at a hearing related to his present claim. Thus, the Board finds that reasonable efforts were made by VA to satisfy its duty assist and to obtain evidence necessary to substantiate the Veteran's claim. No further assistance to develop evidence is required. Analysis: Service Connection for Residuals of a Cold Weather Injury, to include Polyneuropathy The Veteran contends in his August 2008 claim and elsewhere that he was exposed to extreme cold weather during his service in the waters of Korea and Greenland, and that he has sequelae of a cold injury which are causally related to that exposure. The Board is cognizant that the Veteran failed to appear at his scheduled August 2012 VA examination regarding his claim for service connection for residuals of a cold weather injury, to include polyneuropathy. As such, his claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board finds that the evidence supports an award of service connection for axonal sensory polyneuropathy. The Veteran reports that he served as a deckhand seaman in the Korean waters and in the North Sea, off the coast of Greenland. See Veteran's August 2008 statement, and the December 2011 statement from his representative. Consistent with his account, the Veteran's service records indicate that he served aboard a Navy vessel that was in the Arctic near Greenland. The Veteran reports that his exposure to extreme cold weather temperatures with wind chills below zero and the Arctic waters caused his current polyneuropathy. Review of the service records shows the Veteran served aboard various vessels while in the Navy, and has received the Korean Service Medal. His military occupational specialty is listed as seaman and seaman's apprentice. Service treatment records are negative for complaints, treatment, or diagnoses related to a frostbite injury or neuropathy. Post-service VA records reflect a past medical history of frostbite, along with the Veteran's report of polyneuropathy symptoms since 1951 following a frostbite injury in service. Despite the absence of a diagnosis of a frostbite injury in service, the Veteran competently reports that he has experienced symptoms during and since service. The Veteran is competent to report on all things of which he has personal knowledge derived from his own senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); 38 C.F.R. § 3.159(a)(2). More specifically, layperson is competent to observe residuals of frostbite-such as burning, itching, and peeling skin. Goss v. Brown, 9 Vet. App. 109, 113 (1996). Additionally, the Veteran has provided competent medical evidence of both a current diagnosis and a nexus opinion linking that diagnosis to his service. Specifically, in November 2008, Dr. T.B. opined that: [The Veteran] has reported chronic symptoms of painful polyneuropathy since 1951 when he had a frostbite injury while serving in the Navy. Our objective neurological findings together with the electrodiagnostic studies have confirmed the presence of axonal sensory polyneuropathy that affected predominantly the lower extremities. Based on the history provided by the [Veteran], neurological examination and EMG [electromyography] studies and my personal clinical experience dealing with similar cases, it is in my opinion that the patient's painful neuropathy is as likely as [not] caused by the frostbite injury during his active duty in the Navy. The rational [sic] for such conclusion was based on the onset of the symptoms during his military service, [the] lack of any other etiology as evidenced by [his] negative blood work up and finally the VA guidelines that determined frostbite as a possible cause for nerve injury symptoms. Based on a review of the evidence, the Board finds that service connection is warranted for axonal sensory polyneuropathy. In reaching this determination, the Board finds the Veteran's reports of exposure to extreme cold weather during his service in the waters of Korea and Greenland, as well as his reports of experiencing symptoms of frostbite in service, are both competent and credible. Moreover, when combined with Dr. T.B.'s November 2008 positive nexus opinion, the Board finds that the evidence is at least in equipoise as to whether the Veteran's axonal sensory polyneuropathy is related to service. Significantly, no medical opinion to the contrary is of record. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for axonal sensory polyneuropathy. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Analysis: Increased Rating for Pleural Plaques due to Asbestos Exposure As an initial matter, the Board notes that a rating in excess of 30 percent for pleural plaques due to asbestos exposure was denied in an August 2007 rating decision. In July 2008, the Veteran reported that, pertinent to his service-connected for pleural plaques due to asbestos exposure, he was experiencing tightness in his chest and running out of breath quickly. This statement, which VA received within one year of the August 2007 rating decision, is new and material evidence, and precluded the August 2007 rating decision from becoming final. See 38 C.F.R. 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). As such, the August 2007 rating decision is the proper determination certified for appellate review. The Board is cognizant that the January 2013 supplemental statement of the case reflects that the Veteran did not go to a scheduled August 2012 VA examination. However, inspection of August 2012 documentation shows that a Disability Benefits Questionnaire (DBQ) as to the Veteran's respiratory condition was cancelled due to "Not Enough Information," and not due to "Failed to Report." Moreover, the questions associated with the examination all related to the Veteran's claim for service connection for polyneuropathy, and not to his claim for an increased rating for pleural plaques due to asbestos exposure. Thus, the Board finds that the Veteran did not fail to report for an August 2012 respiratory examination, and his claim need not be dismissed on that basis. The Veteran contends in his January 2007 claim and elsewhere that his service-connected pleural plaques due to asbestos exposure warrant a disability rating in excess of 30 percent. In a November 1996 rating decision, the RO granted service connection for pleural plaques due to asbestos exposure and assigned a noncompensable disability rating, effective July 14, 1995. In a June 1998 rating decision, based on the results of an April 1998 examination, the RO increased the Veteran's disability rating to 30 percent, effective December 31, 1997. In the August 2007 and September 2009 rating decisions currently on appeal, the RO continued the 30 percent rating. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 (2012). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, the analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Under 38 C.F.R. § 4.97, DC 6833, a 30 percent rating applies when the Veteran has FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted. A 60 percent rating applies when the Veteran has 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 applies when the Veteran 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. Following his January 2007 claim, VA provided the Veteran with examinations of his pleural plaques due to asbestos exposure in June 2007, September 2009, and August 2011. In June 2007, the VA examiner found that the Veteran had no cor pulmonale or pulmonary hypertension, and was not on oxygen therapy. Spirometry was within normal limits. Diffusing capacity was mildly reduced, solely due to reduced lung volume. Pulse oximetry at rest on room air was normal. In September 2009, the VA examiner found that the Veteran had lung volumes within normal limits, and normal diffusing capacity. His DLCO was at 73 percent of predicted value. The examiner further found that the Veteran had no cor pulmonale or pulmonary hypertension. The examiner also determined that the Veteran's pleural plaques on chest x-ray secondary to asbestos exposure were asymptomatic, had no effects on his usual daily activities, and caused no limitations on employment. In August 2011, the VA examiner found that the Veteran had had no cor pulmonale or pulmonary hypertension. The examiner further found that the Veteran's asbestos-related pleural plaques had no occupational effects and no effects on his usual daily activities. In September 2011, the examiner provided the Veteran's PFT results, which showed that he had FVC of 102 percent predicted. Additionally, the examiner explained that postbronchodilator testing was not done since baseline results were within normal limits (WNL). Additionally, a new DLCO test was not performed because the Veteran was unable to produce acceptable or reproducible spirometry data due to inability to follow instructions, despite giving his best effort. In evaluating the Veteran's claim for a higher rating, the medical evidence does not support the assignment of a rating higher than 30 percent for pleural plaques due to asbestos exposure. The Veteran does not have FVC less than 65 percent predicted; DLCO (SB) less than 56 percent predicted; maximum exercise capacity of 20 ml/kg/min or less of oxygen consumption with cardiorespiratory limitation; or cor pulmonale, pulmonary hypertension, or required outpatient oxygen therapy. Rather, the Veteran's measured values and findings are all less severe than required for a disability rating in excess of 30 percent. Moreover, VA examiners found, most recently in August 2011, that the Veteran's asbestos-related pleural plaques had no occupational effects and no effects on his usual daily activities. Therefore, the preponderance of the evidence is against the claim and entitlement to an evaluation in excess of 30 percent is not warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's pleural plaques due to asbestos exposure, as measured by PFT test results. The rating criteria are therefore adequate to evaluate the pleural plaques due to asbestos exposure, and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has not submitted evidence of unemployability due to his pleural plaques due to asbestos exposure and thus, TDIU is not raised by the record. ORDER Service connection for axonal sensory polyneuropathy is granted. A disability rating in excess of 30 percent for pleural plaques due to asbestos exposure is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs