Citation Nr: 1312478 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 09-22 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an initial compensable evaluation for asbestos related pleural disease. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from March 1950 to June 1953. This matter comes to the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In June 2011 the Veteran was afforded a Travel Board hearing. A transcript of the testimony offered at this hearing has been associated with the record. In August 2011 and November 2012 decisions, the Board remanded this issue for additional development. 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). FINDING OF FACT The preponderance of the evidence reflects that the Veteran's pulmonary symptoms, to include wheezing, coughing, sputum production and dyspnea on exertion, as well as deficiencies demonstrated during a pulmonary function test, are due to his non-service connected lung disorders, to include chronic obstructive pulmonary disease (COPD). CONCLUSION OF LAW The criteria for an initial, compensable rating for asbestos related pleural disease are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 38 C .F.R. §§ 3.102, 3.159, 3.321, 4.97, Diagnostic Codes 6899-6833 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). A VCAA letter dated in July 2007 fully satisfied the duty to notify provisions under 38 U.S.C.A. §5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The July 2007 letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, for initial rating claims or claims for an earlier effective date, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating or the effective date of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As the Board will discuss in detail in the analysis below, the Veteran was provided with VA examinations throughout the appeal period. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disability since he was last examined in October 2011. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board finds that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neither the Veteran nor his representative has contended otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2012); Barr, 21 Vet. App. at 312. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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). The RO granted service connection for asbestosis in a March 2008 rating decision. A noncompensable rating was assigned, effective June 15, 2007 under C.F.R. § 4.97, Diagnostic Code 6899-6833 (2012). The Board notes that respiratory disorders are evaluated under Diagnostic Codes 6600 through 6817, and 6822 through 6847. Pursuant to 38 C.F.R. § 4.96(a), ratings under these diagnostic codes will not be combined with each other. Rather, a single rating will be assigned under the Diagnostic Code which reflects the predominant disability with elevation to the next higher evaluation only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a) (2012). Under Diagnostic Code 6833, asbestosis is to be rated under the General Rating Formula for Interstitial Lung Disease. This Formula states that a 10 percent evaluation is warranted for FVC (Forced Vital Capacity) of 75 to 80 percent predicted value, or; DLCO (Diffusion of the Lung for Carbon Monoxide) by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted. A 30 percent evaluation is warranted for FVC of 65 to 74 percent predicted, or; DLCO (SB) of 56 to 65 percent predicted. A 60 percent evaluation is warranted for 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 cardio-respiratory limitation. A 100 percent evaluation is warranted for FVC less than 50 percent of predicted value, or; DLCO (SB) less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardio-respiratory limitation, or; cor pulmonale (right heart failure) or pulmonary hypertension, or; requiring outpatient oxygen therapy. 38 C.F.R. § 4.97. Factual Background and Analysis The Veteran underwent a VA examination in February 2008. The examiner noted that the Veteran was a boiler technician in the Navy during his service from 1950 to 1953. He also had a 50 pack a year smoking history although he quit smoking cigarettes in 1997. He had frequent episodes of pneumonia and bronchitis the last 10 or 15 years. The Veteran reported his symptoms as wheezing, coughing and sputum production. He did not have all of these symptoms all of the time as well as dyspnea on exertion. The examiner indicated that "clearly these symptoms as well as the recurrent episode of pneumonia and bronchitis are secondary to the tobacco related COPD with emphysema". The Veteran did use albuterol by inhaler twice a day as well as an inhaler one or two times a day for his COPD. He did not require supplemental oxygen. The Veteran did not get flare-ups of the asbestos related pleural disease. Episodes of bronchitis and flare-ups of COPD and episodes of pneumonia are common complications of tobacco related COPD and emphysema and these were the most probable cause of the flare-ups and episodes of lung infection. He did not have hospitalization for flare-up or pneumonia in the last 12 months. The diagnosis was breathing problems primarily from complications of tobacco related COPD though the Veteran did have asbestos related pleural disease. CTs have indicated that asbestos pleural disease is not very extensive and they did not show any evidence of any interstitial fibrosis or any actual asbestosis though the CT scans and chest x-rays do show prominent changes of emphysema and COPD. The symptoms which the Veteran described and the history of recurrent infections are most probably attributable to his tobacco related COPD and emphysema. They are not typical manifestations of COPD and emphysema. The examiner determined that if any of the Veteran's symptoms are related to by his asbestos related pleural disease, it was "probably a fairly insignificant portion" of his breathing problems. The pulmonary function test (PFT) was consistent with severe tobacco related emphysema and not supportive of the asbestos related pleural disease being a significant contributor to any limitations. The test revealed severe obstructive disease with air trapping and resulting in decreased diffusing capacity. FVC was 91, FEV1/FVC was 37, FEV-1 was 53 and DLCO was 60. The examiner concluded that these findings are typical of tobacco-related emphysema. A March 2008 PFT revealed FVC of 84 percent predicted, FEV1 of 71 percent predicted and FEV1/FVC of 84 percent predicted. In a June 2011 letter, a private physician from the Lincoln City Medical Center noted that the Veteran was "clearly exposed" to asbestos which was a known carcinogen and accelerates the development of COPD in patients who use cigarettes. The Veteran did smoke for about 40 years and compiled a 35+ pack a year history. He had ground glass appearance on CTs done in 2005 and 2006 with pleural plaques consistent with asbestosis. His PFT done in March 2008 showed moderate obstructive pulmonary disease and was "clearly casually related to his asbestosis". COPD did alter to bodies defenses to pulmonary infection and likely contributed to his serial pulmonary infections. Per the August 2011 Board remand instructions, the Veteran underwent a VA examination in October 2011 to determine the current severity of his asbestos related respiratory disability and to opine as to which of the Veteran's respiratory symptoms are related to his documented asbestos exposure or to other causes. The examiner noted that the Veteran was diagnosed with COPD and calcified pleural plaques. The Veteran reported that he coughed frequently during the day and at night. He had shortness of breath and he could only walk 15-20 feet before he needed to stop and catch his breath. He put on 30-40 pounds in the past year due to his decreased activity related to his breathing limitations. He also had wheezing at night and during the day. He smoked from age 15 to 65 and smoked an average of half a pack of cigarettes a day. His respiratory condition did not require the use of parenteral corticosteroid medications. His illness did require inhaled medications as he used intermittent bronchodilator therapy, intermittent inhalational anti-inflammatory medication, Advair, Abuterol, and Xopenex. All of these medications were for his COPD. The examiner noted that a CT scan from October 2005 demonstrated emphysematous changes present involving the upper lobes bilaterally. The Veteran was referred for PFTs but inadvertently given the incorrect date of this test by the VA staff. However, after being informed of the correct date for the test, the Veteran declined to make a second trip to have a PFT performed. The examiner noted that the Veteran had severe COPD as evidenced by his last PFT in February 2008. This condition was most likely the sole cause of his limitations in pulmonary function. The examiner noted that this conclusion was reached because the abnormalities on his PFT's of reduction in FEV1 and FEV1/FVC ratio were consistent with an obstructive lung process, which in those with a significant past history of smoking such as this Veteran, is most likely due to the effect of past tobacco use on the lungs. The PFT finding of decreased DLCO is also most likely due to his COPD given its severity. Of note, when asbestos exposure causes significant interstitial lung fibrosis, this is usually associated with low vital capacity and total lung capacity. The Veteran's vital capacity and total lung capacity were normal on recent testing making it less than likely than not that his decrease in DLCO is due to past asbestos exposure and more likely that the decrease in DLCO is due to his COPD. The examiner opined that the Veteran's current symptoms of frequent coughing and wheezing and dyspnea on exertion were less likely than not due to or aggravated by his asbestos exposure. Instead, these symptoms were more likely than not due to COPD which was most likely secondary to his significant past smoking history. The rational for this conclusion includes his PFT findings of severe obstruction (most commonly due to past tobacco use causing COPD) with no restriction (as would be expected in those with interstitial lung disease due to asbestos exposure). The examiner noted that the claims file contained a June 2011 letter from a private physician which opined that the Veteran's moderate obstructive type disease was "clearly causally related" to his asbestosis. The examiner noted that whether or not there was a relationship between asbestos and chronic airway obstruction has been studied and the weight of the literature shows that chronic airway obstruction is most likely due to tobacco smoking (and not asbestos) in asbestos-exposed workers who have smoked. The examiner noted that the American Thoracic Society had determined that "In general, the magnitude of the asbestos effect on airway function is relatively small. This effect by itself is unlikely to result in functional impairment or the usual symptoms and signs of COPD." The examiner also reported that the Veteran had a past history of frequent bouts of pneumonia and bronchitis, the cause of which was unclear. The examiner determined that the weight of the literature did not support a relationship between asbestos exposure and bornchiectasis. A July 2012 overnight oximetry test suggested that the Veteran may qualify for oxygen. A July 2012 CT of the chest demonstrated faint activity along the pleural surfaces that was not enough to be considered positive. Calcified pleural plaques were seen in some of these regions suggesting prior asbestos exposure. Based on a review of the record, the Board finds that a compensable rating for asbestos related pleural disease is not warranted. The Board notes that the PFT readings of the February 2008 VA examination on its face would support the assignment of an initial 30 percent rating as the Veteran's DLCO reading was 60. However, the Board finds that the most probative evidence reflects that the Veteran's pulmonary symptoms, to include wheezing, coughing and sputum production, as well as deficiencies demonstrated during a PFT, are due to his non-service connected lung disorders, to include COPD and not due to his service-connected asbestos related pleural disease. The Board notes that there are conflicting medical opinions as to whether the Veteran's pulmonary symptoms are caused or aggravated by his service-connected asbestos related pleural disease. As noted above, in a June 2011 letter, a private physician concluded that the Veteran's moderate obstructive pulmonary disease and was "clearly casually related to his asbestosis". Conversely, the October 2011 VA examiner specifically found that the Veteran's current symptoms were less likely than not due to or aggravated by his asbestos exposure as these symptoms instead were more likely than not due to COPD which was most likely secondary to his significant past smoking history. The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board recognizes that both of these conflicting opinions were offered by competent medical experts. However, while the private physician indicated that asbestosis accelerates the development of COPD in patients who use cigarettes, and that the Veteran's moderate obstructive pulmonary disease was "clearly causally related to his asbestosis", the physician provided no rationale underlying his assertion. The Board notes that, in assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). For these reasons, the Board finds the private physician's report to be of little probative value. In contrast, the October 2011 VA examiner provided a detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran's claims file when concluding that the Veteran had severe COPD as evidenced by his last PFT which was most likely the sole cause of his limitations in pulmonary function. Significantly, the examiner addressed both the Veteran's contentions regarding asbestosis and the June 2011 private physician's opinion on the current symptoms attributable to asbestosis. Contrary to the private physician's opinion letter, the October 2011 VA examiner explained that whether or not there was a relationship between asbestos and chronic airway obstruction has been studied and the weight of the literature shows that chronic airway obstruction is most likely due to tobacco smoking (and not asbestos) in asbestos-exposed workers who have smoked. The examiner specifically referenced the American Thoracic Society's determination that "In general, the magnitude of the asbestos effect on airway function is relatively small. This effect by itself is unlikely to result in functional impairment or the usual symptoms and signs of COPD." The October 2011 VA examiner also specifically addressed the PFT readings when concluding that the Veteran's COPD condition was most likely the sole cause of his limitations in pulmonary function. The examiner noted that the abnormalities on his PFT's of reduction in FEV1 and FEV1/FVC ratio were consistent with an obstructive lung process, which in those with a significant past history of smoking such as this Veteran, is most likely due to the effect of past tobacco use on the lungs. The examiner also determined that the PFT finding of decreased DLCO was also most likely due to his COPD given its severity based upon the PFT readings. The Board notes that this VA examiner's conclusions are supported by similar clinical findings discussed in the earlier February 2008 VA examiner. As noted, the February 2008 examiner determined that if any of the Veteran's symptoms are related to by his asbestos related pleural disease, it was "probably a fairly insignificant portion" of his breathing problems. That examiner explained that the Veteran's pulmonary function test (PFT) was consistent with severe tobacco related emphysema and not supportive of the asbestos related pleural disease being a significant contributor to any limitations. For these reasons the Board finds the October 2011 VA examiner's assessment to be the most probative. As such, the preponderance of the competent evidence shows the Veteran's service-connected asbestosis is not the primary cause of his symptoms or decrease in functional capacity, and therefore the compensable criteria under Diagnostic Code 6833 are not met. Instead, the Veteran's limited on pulmonary function testing have been attributed to a non-service connected disorder of COPD. Because this is a case where the medical evidence clearly demonstrates that his pulmonary symptoms are due to a non-service-connected disorder, and that the Veteran's service-connected asbestosis is essentially asymptomatic, the Board finds that there is no need to attribute any pulmonary symptoms shown to his service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Therefore, a compensable evaluation for asbestosis under Diagnostic Code 6833 is not warranted at this time, as his asbestosis has not been shown to cause FVC of 75 to 80 percent predicted value, or DLCO SB of 66 to 80 percent predicted, despite a PFT which demonstrates deficiencies in these areas. Finally, the Board does not find that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b) (1) is warranted for the service-connected asbestos related pleural disease at any time during the current appeal. That provision provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, a veteran may be awarded a rating higher than that encompassed by the schedular criteria, as shown by evidence reflecting that the disability at issue causes marked interference with employment or has in the past or continues to require frequent periods of hospitalization, thereby rendering impractical the use of the regular schedular standards. Id. 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 disorder are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (noting that the "[R]ating 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 associated with his asbestos related pleural disease and provide for additional or more severe symptoms than currently shown by the evidence. Although the applicable criteria provide for higher ratings, the Board fully explained why a compensable rating is not warranted. Thus, the Veteran's 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, the Board concludes that referral for extraschedular consideration for this service-connected disability is not warranted. ORDER Entitlement to an initial compensable evaluation for asbestos related pleural disease is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs