Citation Nr: 1312459 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 11-00 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a rating in excess of 10 percent for pleural plaque for the period beginning September 14, 2011. 2. Entitlement to a total disability rating by reason of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1944 to April 1950 and from June 1951 to September 1952. These matters were previously before the Board of Veterans' Appeals (Board) in December 2012, at which time they were remanded for further development. These matters came before the Board on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran requested hearings in conjunction with each of his appealed issues, but that he withdrew those requests in September 2009. 38 C.F.R. § 20.704(e) (2012). The Board has considered relevant records in the Virtual VA electronic records system in conjunction with this adjudication. 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). The issue of entitlement to a total disability rating due to individual unemployability 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. FINDING OF FACT For the period beginning September 14, 2011, the evidence does not show a forced vital capacity (FVC) of 64 percent or less, or diffusion capacity for the lung for carbon monoxide by single breath method (DLCO) of 55 percent predicted or less, or a maximum exercise capacity of 15 to 20 ml/kg/min. oxygen consumption with cardiorespiratory limitation. A post-bronchodilator FVC of 74.6% was recorded on recent examination. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for a rating of 30 percent, but no higher, for pleural plaques for the period beginning September 14, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6833 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Such notice was provided to the Veteran in August 2011. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record. The results of a September 2011 VA examination, as well as the addendum requested by the Board in the December 2012 remand, are of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Disability Ratings 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 already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). In making all determinations, the Board must also fully consider the lay assertions of record. Buchanan, 451 F.3d at 1335. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that 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 if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's pleural plaques disability is rated by analogy to asbestosis. 38 C.F.R. § 4.97 Diagnostic Code 6833. Asbestosis is rated pursuant the general rating formula for interstitial lung disease. A 10 percent rating applies when there is FVC of 75 to 80 percent predicted, or DLCO of 66 to 80 percent predicted. A 30 percent rating applies when there is FVC of 65 to 74 percent predicted, or DLCO of 56 to 65 percent predicted. A 60 percent rating applies when there is 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 rating of 100 percent applied when there if FVC less than 50 percent predicted, DLCO less than 40 percent predicted, maximum exercise capacity of less than 15 ml/kg/min. oxygen consumption with cardiorespiratory limitation, cor pulmonale or pulmonary hypertension, or when outpatient oxygen therapy is required. Id. Post-bronchodilator results are used for rating purposes unless the post-bronchodilator results are worse than the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5). VA provided the Veteran with a pulmonary function test in September 2011. At that time, his pre-bronchodilator FVC levels were 71 percent predicted. His DLCO measurements were 77 percent of predicted levels. Post-bronchodilator measurements demonstrated FVC of 74.6 percent predicted. Pre-bronchodilator Forced Expiratory Volume in one second (FEV-1) results were 38.6 percent predicted, and post-bronchodilator FEV-1 results were 54.9 percent predicted. In a December 2012 addendum, the September 2011 examiner noted that FVC measurements were correlative of pulmonary interstitial or restrictive lung disease, such as the Veteran's pleural plaques associated with asbestos exposure. The examiner explained that the Veteran's FEV-1 results, which were much lower, were the result of his non-service-connected chronic obstructive pulmonary disease (COPD). Thus, the Veteran's disability does not warrant application of the rating criteria that considers FEV-1 results. See, e.g., 38 C.F.R. § 4.97, Diagnostic Code 6604 (2012) (providing rating criteria for COPD). Applying the general formula for interstitial lung disease to his pulmonary function test results, the Veteran's pleural plaques warrant an increased, 30 percent rating, for the period beginning September 14, 2011. 38 C.F.R. § 4.97, Diagnostic Code 6833. The rating formula does not clearly take into account FVC readings such as the Veteran's (74.6 percent post-bronchodilator) that fall between 74 percent and 75 percent. Nevertheless, it is evident that his forced vital capacity is lower than the 75 percent threshold that describes the lowest level at which a 10 percent rating will be applied. As such, the findings more nearly approximate the higher rating, and with resolution of reasonable doubt in his favor, a 30 percent rating is warranted. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55-57. The Board observes that the Veteran asserted in June 2011 that he is misdiagnosed, and that rather than pleural plaques, he actually has mesothelioma. He has not identified any source for that diagnosis, except for the fact that he was exposed to asbestos while in the military. The Veteran is not competent to diagnose himself with mesothelioma, a complicated disease which requires specific medical tests to identify. See Kahana, 24 Vet. App. at 433. As such, his statement in this regard is not probative of the issue. Notably, the RO denied service connection for mesothelioma in December 2011. Extraschedular The Board has also considered whether the Veteran's pleural plaques disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's pleural plaques. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, that is, the performance of the Veteran's respiratory system, and provide for consideration of greater disability and symptoms than currently shown by the evidence. In making this determination, the Board has considered all potentially-service-connected symptoms related to the Veteran's pleural plaques. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (quoting 61 Fed. Reg. 52698 (Oct. 8, 1996) (noting that "when it is not possible to separate the effects of the [service-connected condition and the non-service-connected condition], VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition"). The September 2011 examiner specifically differentiated between the signs of non-service-connected COPD, and those of pleural plaques in providing the December 2012 addendum; based on that medical evidence, the Board is able to differentiate between the Veteran's service-connected and non-service-connected respiratory symptomatology. Further, the Veteran's COPD causes, and is rated based on, respiratory symptoms that are objectively measured by different tests, as recognized by the regulations. See 38 C.F.R. § 4.97, Diagnostic Code 6604. There is no suggestion that the Veteran has required periods of hospitalization due to pleural plaques. To the extent that pleural plaques have caused significant interference with his employability, the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is being remanded. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. ORDER Entitlement to a 30 percent rating, and no higher, for pleural plaque for the period beginning September 14, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The issue of entitlement to a TDIU must be remanded, as the most recent opinion concerning the Veteran's employability is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). The Veteran retired in 2002, and asserts that his retirement was due to disability. The September 2011 examiner who opined that the Veteran was not precluded from obtaining and maintaining sedentary work failed to address whether such work was consistent with his education and occupational experience. In this regard, the Board notes that the Veteran's primary profession historically was that of an electrician. Although the examiner's opinion was otherwise well-supported, he failed to address whether the Veteran was capable of obtaining or maintaining employment for which he was qualified. On remand, the RO/AMC should obtain an addendum opinion addressing the question of whether, considering his service-connected disabilities but not his age, the Veteran is capable of obtaining or maintaining employment for which he is otherwise qualified. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Return the September 2011 general medical examination report to the examiner, if he is available to VA. The examiner should review the claims file, this remand, and the Veteran's Virtual VA electronic record, and should indicate in the ensuing addendum that such a review occurred. Thereafter, the examiner should provide an addendum opinion addressing whether the Veteran is able to obtain or maintain employment due only to his service-connected disabilities, consistent with his education and occupational experience, irrespective of age and any non-service-connected disorders. A full explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a full explanation provided for that conclusion. If the previous examiner is unavailable, the RO/AMC should obtain a sufficient opinion from a similarly qualified medical professional. If a medical professional indicates that a new examination is necessary to address the questions presented, then the RO/AMC should schedule such an examination. If it is determined that a social and industrial survey is required to obtain the pertinent opinion, such survey should be scheduled. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs