Citation Nr: 1319794 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 13-12 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for asbestosis. REPRESENTATION Appellant represented by: Daniel M. Scolnick ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1942 to December 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. In that decision, the RO granted service connection for asbestosis and assigned a 10 percent evaluation effective from June 7, 2010. The Board notes that the January 2013 statement of the case (SOC) addressed the issues of entitlement to a higher initial rating for asbestosis and to an earlier effective date for the grant of service connection for asbestosis. In the accompanying notice letter, the RO instructed the Veteran to file a new substantive appeal form (VA Form 9) to continue his appeal. In this regard, the Veteran had previously submitted a VA Form 9 in November 2012 addressing both issues, but it was not accepted as a formal appeal, as it was filed prior to the issuance of the January 2013 SOC. See 38 C.F.R. § 20.200 (2012). Thereafter, the Veteran's representative submitted a VA Form 9 in March 2013, but he limited the issue on appeal to the assignment of the 10 percent disability rating for asbestosis. Accordingly, the Board finds that the Veteran did not perfect an appeal as to the issue of entitlement to an earlier effective date for the grant of service connection for asbestosis. Accordingly, that issue is not currently before the Board. The Board also notes that the Veteran requested a hearing before the Board at the RO in his November 2012 submission. However, in the subsequent VA Form 9, the Veteran's representative indicated that the Veteran did not want a Board hearing. The Veteran has not submitted a request for another Board hearing since that time, and his representative has asked that the case not be remanded. As such, the Veteran's request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.704. The Board further notes that the Veteran is now represented by the above-named representative pursuant to 38 C.F.R. § 14.630, which allows for representation on a one-time basis with no compensation to be charged or paid. A properly completed VA Form 21-22a is of record. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the claim. A review of the documents in the electronic file reveals that some of the records are non-duplicative of those in the paper claims file, to include evidence of the Veteran's ongoing VA treatment dated since August 2009. However, these records were considered by the RO prior to the issuance of the SOC. Moreover, the Veteran's representative submitted a waiver of the RO's initial consideration of any additional evidence received. Therefore, the Board finds that there is no prejudice in proceeding with adjudication of the claim. 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. Throughout the appeal period, the Veteran's asbestosis has not been productive of Forced Vital Capacity (FVC) of 65- to 74-percent predicted, where the measurement of such showed a post-bronchodilator result poorer than the pre-bronchodilator result; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 56- to 65-percent predicted; cor pulmonale or pulmonary hypertension; or, the requirement of outpatient oxygen therapy. 2. The Veteran's DLCO (SB) measurement most accurately reflects the level of disability due to his asbestosis. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for asbestosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.96, 4.97, Diagnostic Code 6833 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Nevertheless, the Veteran in this case is challenging the initial rating assigned following the grant of service connection for asbestosis. In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial rating for asbestosis. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's available service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. He has not identified any available, outstanding records that are relevant to the claim being decided herein. In fact, on two occasions during the appeal period, he has specifically indicated that he had no additional information to submit to support his claim. See September 2010 report of contact memorandum; August 2012 VCAA response. Moreover, the record includes written statements provided by the Veteran and his representative. The Veteran was also afforded a VA examination in June 2012 in connection with his claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination in this case is adequate, as it is predicated on a review of the Veteran's medical history, to include the VA electronic medical records, as well as on an examination, and fully addresses the rating criteria that are relevant to rating the disability in this case. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). 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. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has further assisted the Veteran throughout the course of this appeal by providing him with an SOC, which informed him of the laws and regulations relevant to his claim. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already 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). However, as in this case, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Separate ("staged") ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's service-connected asbestosis is currently assigned a 10 percent disability rating effective from June 7, 2010, pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6833. Under the General Rating Formula for Interstitial Lung Disease in 38 C.F.R. § 4.97 (Diagnostic Codes 6825 through 6833), a 10 percent rating is assigned for asbestosis with FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66- to 80-percent predicted. A 30 percent rating is warranted for asbestosis with FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted. A 60 percent rating is contemplated for asbestosis with 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 is warranted for asbestosis with 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. Under 38 C.F.R. § 4.96(d), there are special provisions for applying the evaluation criteria for asbestosis and certain other respiratory diseases. In relevant part, the provisions are as follows: (2) If the DLCO (SB) test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. ... (4) Post-bronchodilator studies are required when pulmonary function tests (PFT's) are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. (5) When evaluating based on PFT's, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. (6) When there is a disparity between the results of different PFT's (FEV-1, FVC, etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(2), (4)-(6). Historically, the Veteran was diagnosed with asbestosis in 1991 following a lung biopsy. A review of the VA treatment records beginning around June 2009 shows that the Veteran received ongoing treatment for asbestosis, which was noted to be stable. See, e.g., November 2009, June 2010, June 2011 VA treatment records. A June 2011 VA treatment record also indicates that the Veteran failed to follow-up with pulmonary as requested since 2008. A May 2012 VA treatment record shows that the Veteran had mild evidence of asbestosis from his computed tomography (CT) scan of the thorax at Christiana Hospital. It was noted that he was currently asymptomatic. The Veteran was afforded a VA examination with pulmonary function testing (PFT) in June 2012 during which he complained of progressive exertional dyspnea. The examiner noted the Veteran's previous exposure to asbestos while in the Navy, as well as the results of previous testing and diagnosis. He observed that the Veteran's asbestosis did not require the use of outpatient oxygen therapy, and he was not found to have cardiopulmonary complications, to include cor pulmonale or pulmonary hypertension. The examiner noted review of an April 2008 CT scan showing extensive bilateral pleural placques with parenchymal shadowing, consistent with pulmonary fibrosis and indicated that the PFT testing performed on examination accurately reflected the Veteran's current pulmonary function. On examination, FVC readings were 66 percent predicted pre-bronchodilator and 63 percent predicted post-bronchodilator. The DLCO (SB) reading was 72 percent predicted pre-bronchodilator with a corresponding finding of minimal diffusion defect. The PFT report also showed that there was no significant response following use of bronchodilators, and the reduced diffusing capacity indicated a minimal loss of functional alveolar capillary surface. The pulmonary function diagnosis was an indication of pulmonary restriction based on total lung capacity measurement and minimal diffusion defect based on DLCO measurement. The June 2012 VA examiner noted functional impact of slowly progressive exertional dyspnea over the last few years with current effort capacity limited to walking less than a quarter of a mile. The examiner also noted that the Veteran had clinical, radiographic, physiologic, and pathologic evidence of asbestosis. In a November 2012 written statement, the Veteran reported some history of testing and treatment for his asbestosis and included copies of diagnostic reports from around the time he was first diagnosed. One of those reports was specifically noted by the June 2012 VA examiner. In the March 2013 brief, the Veteran's representative stated that the FVC post-bronchodilator measurement taken during the VA examination entitles him to a 60 percent rating and that the assignment of the 10 percent rating was not supported by the record. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher initial rating in excess of 10 percent for his asbestosis. The one PFT measurement of record for the appeal period during the June 2012 VA examination provided an FVC reading of 66 percent predicted pre-bronchodilator and 63 percent predicted post-bronchodilator. The DLCO (SB) reading was 72 percent predicted pre-bronchodilator with a corresponding finding of minimal diffusion defect. In determining the appropriate measurements for rating purposes, the Board notes that the post-bronchodilator reading was poorer than the pre-bronchodilator reading. As such, the pre-bronchodilator reading of 66-percent predicted for FEV is used for this measurement. See 38 C.F.R. § 4.96(d)(5). Based on this measurement, consideration of the 30 percent rating criteria is initially appropriate. However, where there is a disparity between the results of different PFT's, such that the level of evaluation would differ depending on which test result is used, the regulations instruct use of the test result that the examiner states most accurately reflects the level of disability. See 38 C.F.R. § 4.96(d)(6). In this case, the VA examiner specifically indicated that the DLCO (SB) test most accurately reflected the Veteran's level of disability. The findings of that test correspond to a 10 percent rating under the diagnostic code. In addition, the VA treatment records indicate that the Veteran's asbestosis remained stable throughout the appeal period, to include becoming asymptomatic by May 2012. Such evidence further shows a disability picture consistent with the current rating assigned. Moreover, the Veteran has not been shown to have cor pulmonale, pulmonary hypertension, or the requirement of outpatient oxygen therapy contemplated in the 100 percent rating criteria. In fact, the June 2012 VA examiner specifically indicated in the examination report that the Veteran did not require outpatient oxygen therapy for his asbestosis, nor did he have resulting cardiopulmonary complications from his asbestosis. The Board notes one additional component of the 60 and 100 percent rating criteria regarding the results of a maximum exercise capacity test. In this instance, there are no expressly stated results of a maximum exercise capacity test on the VA examination. However, where a maximum exercise capacity test is not of record, the relevant rating provisions instruct to evaluate the disability on alternative criteria. See 38 C.F.R. § 4.96(d)(1)(i); see also 71 Fed. Reg. 52,457-58 (Sept. 6, 2006) (final rulemaking explaining that regulations do not require a maximum exercise capacity test be conducted in any case, and that such test is not routinely conducted). Moreover, the June 2012 VA examiner stated that the PFT results accurately reflected the Veteran's current pulmonary function. Cf. 71 Fed. Reg. at 52,458 ("In any given case, the examiner may request, based on clinical judgment, that a maximum exercise capacity test be conducted, such as in cases where the PFT's do not fully explain symptomatology."). Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for an increased rating for asbestosis. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990). In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's asbestosis is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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 disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's chief complaint of dyspnea is fully considered in the assignment of the 10 percent disability rating. Moreover, the rating criteria specifically contemplate pulmonary function testing, and the June 2012 VA examiner indicated that such testing was an accurate reflection of the Veteran's functioning. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected right shoulder disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to an initial disability rating in excess of 10 percent for asbestosis is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs