Citation Nr: 1312243 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 07-21 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a compensable rating for asbestos-related pleural disease, prior to August 13, 2010. 2. Entitlement to an increased rating for asbestos-related pleural disease, currently evaluated as 30 percent disabling from August 13, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from March 1944 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. 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). In May 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). In July 2010, October 2011, and September 2012, the Board remanded the above issues for additional development. FINDINGS OF FACT 1. Prior to August 13, 2010, the most competent and credible evidence of record shows that the Veteran's asbestos-related pleural disease was manifested by Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method of 68 percent of predicted value but not Forced Vital Capacity of 65 to 74 percent of predicted value; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method of 56 to 65 percent of predicted value; maximum oxygen consumption of 15 to 20 ml/kg/min with cardiorespiratory limit; cor pulmonale (right heart failure); pulmonary hypertension; and/or outpatient oxygen therapy. 2. From August 13, 2010, the most competent and credible evidence of record does not show the Veteran's asbestos-related pleural disease being manifested by Forced Vital Capacity of 50 to 64 percent of predicted value; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method of 40 to 55 percent of predicted value; maximum oxygen consumption of 15 to 20 ml/kg/min with cardiorespiratory limit; cor pulmonale (right heart failure); pulmonary hypertension; and/or outpatient oxygen therapy. CONCLUSIONS OF LAW 1. From August 23, 2007, to August 12, 2010, the Veteran met the criteria for a 10 percent rating, but no higher, for asbestos-related pleural disease. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.20, 4.97, Diagnostic Code 6833 (2012). 2. From August 13, 2010, the Veteran has not met the criteria for a rating in excess of 30 percent for asbestos-related pleural disease. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.20, 4.97, Diagnostic Code 6833 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). The Board finds that in a letter dated in November 2007, issued prior to the April 2008 rating decision, provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra. Moreover, even if the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the April 2008 rating decision, the Board finds that providing him with additional notice in September 2008, April 2009, July 2010, October 2011, October 2012, and December 2012 followed by a readjudication of the claim in the February 2013 supplemental statement of the case, "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, even if the above letters did not provide adequate 38 U.S.C.A. § 5103(a) notice, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letters as well as the rating decision, the statement of the case, the supplemental statements of the case, and the Board remands. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the May 2010 Board personal hearing, the VLJ noted the elements of the claims that were lacking to substantiate the claim for increased ratings. The Veteran was assisted at the hearing by his accredited representative and his representative and the VLJ asked questions to draw out the current severity of the appellant's asbestos-related pleural disease. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or the representative that was not obtained while the appeal was in remand status. The hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that they had actual knowledge of the elements necessary to substantiate the claims. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records and his post-service records from the Boston VA Medical Center in substantial compliance with the Board's remand directions. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). While the record includes no private treatment records of the Veteran, the Board finds that a remand to request any such records is not required because the Veteran did not provide VA with authorizations to request such records despite being asked to do so on several occasions while the appeal was in remand status. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) (holding that "the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the purtative evidence."). The Veteran was provided VA examinations and/or VA opinions were obtained in January 2008, November 2008, October 2010, November 2011, and January 2013 as well as provided pulmonary function tests (PFTs) in July 2007, April 2010, August 2010, November 2011, and September 2012. Moreover, the Board finds that the examinations and PFTs are adequate for rating purposes and as to the post-remand VA examinations and PFTs substantially comply with the Board's remand directions because after comprehensive examinations of the claimant as well as after taking a detailed history from the claimant and/or after a review of the record on appeal the examiners provided opinions as to the severity of his asbestos-related pleural disease that allow the Board to rate it under all relevant Diagnostic Codes. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, supra; D'Aries, supra; Dyment, supra. In this regard, the Board notes that in the January 2013 addendum to the November 2012 VA examination it was opined that the examiner could not provide the Veteran's maximum exercise capacity because the physical limitations brought about by his non service connected osteoarthritis and degenerative joint disease precluding accurate test results. Therefore, the Board finds that adjudication of the current appeal must go forward without this information. Id; Also see Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that an opinion by an examiner that he cannot provide the requested opinion satisfies the Board's remand request when it is supported by an adequate explanation such as the limits of medical knowledge being exhausted). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims files shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claim The Veteran filed this claim for a higher rating on August 23, 2007. The evaluation was increased from noncompensably disabling to 30 percent, effective August 13, 2010. He asserts that his asbestos-related pleural disease warrants higher ratings. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held 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). That being said, given unintended delays during the appellate process, VA's determination of the "current 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 that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Regulations require that where there is a question as to which of two evaluations is to 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. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Under 38 C.F.R. § 4.97, Diagnostic Code 6833, the Veteran is assigned a rating for his respiratory disorder by looking at, among other things, pulmonary function test (PFT) results that include: Forced Vital Capacity (FVC); Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO) (SB); and maximum exercise capacity. Specifically, Diagnostic Code 6833 provides a 10 percent evaluation with an FVC of 75 to 80 percent of predicated value or a DLCO (SB) of 66 to 80 percent of predicated value. 38 C.F.R. § 4.97. It provides a 30 percent evaluation with an FVC of 65 to 74 percent of predicated value or a DLCO (SB) of 56 to 65 percent of predicated value. Id. A 60 percent evaluation is warranted with an FVC of 54 to 64 percent of predicated value, a DLCO (SB) of 40 to 55 percent of predicated value, or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. And, a 100 evaluation is warranted with an FVC of less than 50 percent of predicated value, a DLCO (SB) of less than 40 percent of predicated value, or maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, cor pulmonale (right heart failure), pulmonary hypertension, and/or required outpatient oxygen therapy. Id. The Veteran is not required to meet each of the stated criteria in order to warrant an increased rating. Rather, he need only meet one criterion because the criteria are listed in the alternative. See Johnson v. Brown, 7 Vet. App. 95 (1994). Prior to August 13, 2010 With the above criteria in mind, the Board notes that the Veteran's July 2007 PFT showed a normal FVC with no significant change after bronchodilator and a normal DLCO. Thereafter, at the November 2008 VA examination the examiner interpreted the July 2007 PFT as showing an FVC of "above the 95 percent confidence limit" and a DLCO at the lower limits of normal for his age at 68 percent of predicated value. At the April 2010 PFT, it was reported that the Veteran had moderately reduced FVC. The April 2010 PFT did not report the Veteran's DLCO (SB). It was thereafter opined that his test results from his April 2010 PFT were not valid due to poor effort and should be disregarded. The examiner thereafter opined that the Veteran efforts at his 2007 PFT were better and his FVC was normal at that time. While treatment records document the Veteran's periodic complaints and treatment for residuals of his asbestos-related pleural disease, nothing in these records show his adverse symptomatology to be worse than was seen at the above VA examinations and PFTs. Likewise, his treatment records are negative for evidence of cor pulmonale (right heart failure), pulmonary hypertension, and/or outpatient oxygen therapy as a result of his asbestos-related pleural disease. Moreover, the Board notes that VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski 1 Vet. App. 171, 175 (1991). Initially, the Board notes that while the record does not specifically show that the November 2008 examiner when reporting the Veteran's results from his July 2007 PFT reported the DLCO applying the SB method, the record also does not show it was not reported applying the SB method. Therefore, the Board finds that the evidence as to this question, both positive and negative, is at least in equipoise. Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that the DLCO was reported applying the SB method. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Therefore, the Board finds that the most competent and credible evidence of record shows that the Veteran's asbestos-related pleural disease was manifested, at its worst, by a DLCO (SB) of 68 percent of predicated value. Accordingly, the Board finds that the criteria for a compensable, 10 percent, rating for the Veteran's asbestos-related pleural disease were met because his DLCO (SB) was between 66 and 80 percent of predicated value. 38 C.F.R. § 4.97, Diagnostic Code 6833. Moreover, because the record shows that the severity of the Veteran's adverse symptomatology was substantially the same at all times prior to August 13, 2010, consideration of staged ratings is not warranted because the Board finds that the 10 percent rating applies to the entire pre-August 13, 2010, time period. Hart. However, the Board finds that a rating in excess of 10 percent is not warranted. The Board has reached this conclusion because the most competent and credible evidence of record does not show that the Veteran's asbestos-related pleural disease was manifested at any time prior to August 13, 2010, by FVC of 65 to 74 percent of predicated value because at its worst it was 95 percent of predicated value and/or a DLCO (SB) of 56 to 65 percent of predicated value because at its worst it was 68 percent of predicated value. The Board also finds that the record is negative for showing that the Veteran's asbestos-related pleural disease caused cor pulmonale (right heart failure), pulmonary hypertension, and/or required outpatient oxygen therapy. Therefore, the Board finds that a rating in excess of 10 percent for the Veteran's asbestos-related pleural disease must be denied. This is true from August 23, 2007, to August 12, 2010; thus staged ratings is not warranted. Hart. From August 13, 2010 At the August 13, 2010, PFT the Veteran's FVC was 85 percent of predicated value and DLCO (SB) was 58 percent of predicated value. At the October 2010 VA examination, it was opined that the claimant did not have pulmonary hypertension or cor pulmonale. At the November 2011 PFT, the Veteran's FVC was 85 percent of predicated value and DLCO (SB) was 63 percent of predicated value. Thereafter, at the September 2012 PFT, the Veteran's FVC was 71 percent of predicated value and DLCO (SB) was 70 percent of predicated value. While treatment records document the Veteran's periodic complaints and treatment for residuals of his asbestos-related pleural disease, nothing in these records show his adverse symptomatology to be worse than was seen at the above VA examinations and PFTs. Likewise, the Board notes that his treatment records are negative for evidence of cor pulmonale (right heart failure), pulmonary hypertension, and/or outpatient oxygen therapy as a result of his asbestos-related pleural disease. Moreover, the Board finds that VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin, supra. The Board finds that the most competent and credible evidence does not show the Veteran's asbestos-related pleural disease was manifested at any time from August 13, 2010, by FVC of 54 to 64 percent of predicated value because at its worst it was 71 percent of predicated value; a DLCO (SB) of 40 to 55 percent of predicated value because at its worst it was 58 percent of predicated value; or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. 38 C.F.R. § 4.97, Diagnostic Code 6833. The Board also finds that the record is negative for showing that his asbestos-related pleural disease causing cor pulmonale (right heart failure), pulmonary hypertension, and/or required outpatient oxygen therapy from August 13, 2010. Id. As such, the Board finds that a rating in excess of 30 percent for his asbestos-related pleural disease must be denied. This is true since August 13, 2010, and thus staged rating is not warranted. Hart. Conclusions Based on the Veteran's and his representative's claims that the appellant's asbestos-related pleural disease is worse than rated, the Board will consider the application of 38 C.F.R. § 3.321(b)(1) (2012). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected asbestos-related pleural disease is inadequate. A comparison between the level of severity and symptomatology of the Veteran's condition with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. In reaching the above conclusions, the Board has not overlooked the various lay statements found in the record from the Veteran and his representative. In this regard, the Veteran is credible to report on what he sees and feels and others are credible to report on what they can see. See Davidson, supra. However, the Board finds more competent and credible the medical opinions as to the severity of his disability provided by the experts at the Veteran's VA examinations and PFTs than these lay assertions. See Black v. Brown, 10 Vet. App. 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . ."). In adjudicating this appeal, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board finds that Rice is not applicable to the current appeal because the Veteran has never claimed that his asbestos-related pleural disease, acting alone, prevents him from obtaining and/or maintaining employment. Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for a TDIU. ORDER Subject to the law and regulations governing payment of monetary benefits, effective August 23, 2007, a 10 percent rating for asbestos-related pleural disease is granted. A rating in excess of 30 percent for asbestos-related pleural disease is denied at all times from August 13, 2010. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs