Citation Nr: 1325995	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  06-01 637	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to a compensable initial rating for asbestos-related pleural disease.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel


INTRODUCTION

The Veteran served on active duty from January 1956 to March 1960.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 decision by the RO.  In February 2009, the Board remanded the case for additional development.  The Board issued a decision denying the Veteran's claim in July 2011.  

The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court).  In a January 2012 Joint Motion for Remand (JMR), the parties agreed to remand the case back to the Board because, in their view, it needed further development.  The terms of the JMR were incorporated by reference into a January 2012 Order of the Court.  In accordance with the Court's Order, the case was returned to the Board. Thereafter, in September 2012, the Board remanded the claim for development consistent with the terms of the JMR.

This case was again before the Board in April 2013 when it was referred to the Veterans Health Administration (VHA) for an expert medical opinion.  An opinion was obtained in April 2013 and the Veteran and his representative were provided copies of the VHA opinion in May 2013.  The Veteran responded in May 2013 that he did not have any further argument or evidence to submit and the Veteran's representative responded in July 2013 with additional argument.

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.  The Veteran does not require outpatient oxygen therapy for treatment of service-connected asbestos-related pleural disease, and his disability is not manifested by pulmonary hypertension or cor pulmonale.

2.  The Veteran's complaints of shortness of breath cannot be attributed to his service-connected asbestos-related pleural disease.


CONCLUSION OF LAW

The criteria for a compensable initial rating for service-connected asbestos-related pleural disease have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.97, Diagnostic Codes 6825-6833 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

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).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159.  This notice must be provided prior to an initial unfavorable decision on a claim 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).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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.

Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection.  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.  Thus, VA's duty to notify in this case has been satisfied.

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran 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, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained VA treatment records.  The Veteran submitted private treatment records from Drs. J.S., R.H., and B.R., Ochsner Medical Institution, and Gulfshore Medical Consultants.  The appellant was afforded VA medical examinations in April 2003, April 2009, and October 2012.  In addition, an opinion from a VA medical expert was obtained in April 2013.

In September 2012 the Board remanded the Veteran's claim for the Veteran to be asked to identify all private treatment for his disability since April 2007, for additional VA treatment records to be obtained and associated with the claims file, and for the Veteran to be afforded a VA medical examination.

Subsequently, additional VA treatment records were obtained and associated with the claims file.  In addition, in a letter dated in October 2012 the Veteran was asked to identify private health care providers that have treated him for his pulmonary problem since April 2007 and the Veteran was afforded a VA medical examination in October 2012.  In addition, a VHA medical opinion was obtained in April 2013.

Therefore, based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand.  See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Board notes that additional treatment records from Keesler Air Force Base and Gulfport Memorial Hospital have been identified but have not been associated with the claims file.  The treatments at these institutions have been described in the VA treatment records as treatment for the Veteran's heart disease and include testing with cardiac catherization.  VA is not required to search for evidence, which even if obtained, would make no difference in the result.  Allday v. Brown, 7 Vet. App. 517, 526 (1995) (quoting Colvin v. Derwinski, 1 Vet. App. 171 (1991).  See also Soyini v. Derwinski, 1 Vet. App. 540, 541 (1991) (declining to require strict adherence to technical requirements and impose additional burdens on VA when there was no benefit flowing to the claimant).  Therefore, the Board finds it unnecessary to attempt to obtain these records. 

Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, 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.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Higher Evaluation

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided.  38 C.F.R. § 4.14.  It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes.  The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

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(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran seeks entitlement to an initial compensable rating for service-connected asbestos-related pleural disease.  The Veteran's disability is currently evaluated under Diagnostic Code 6899-6833.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  In this case, Diagnostic Code 6899 is used to identify nontubercular lung diseases that are not specifically listed in the schedule, but are rated by analogy to similar disabilities under the schedule.  See 38 C.F.R. §§ 4.20, 4.27.  Diagnostic Code 6833 pertains to asbestosis.

Interstitial lung disease is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.97, Diagnostic Codes 6825-6833.  A 10 percent rating is assigned if the disability is manifested by Forced Vital Capacity (FVC) 75 to 80 percent of predicted or by Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) 66 to 80 percent of predicted.  A 30 percent rating is assigned if the disability is manifested by FVC 65 to 74 percent of predicted or by DLCO (SB) 56 to 65 percent of predicted.  A 60 percent rating is assigned if the disability is manifested by FVC 50 to 64 percent of predicted, by DLCO (SB) 40 to 55 percent of predicted, or by maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation.  The highest available rating, 100 percent, is assigned if the disability requires outpatient oxygen therapy or is manifested by FVC less than 50 percent of predicted, DLCO (SB) less than 40 percent of predicted, cor pulmonale, pulmonary hypertension, or maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation.  Id.

In September 2006, VA amended the regulations governing the evaluation of respiratory disorders by adding what is now 38 C.F.R. § 4.96(d).  See Schedule for Rating Disabilities; Guidelines for Application of Evaluation Criteria for Certain Respiratory and Cardiovascular Conditions; Evaluation of Hypertension With Heart Disease, 71 Fed. Reg. 52,457 (Sept. 6, 2006).  By law, the amendments are applicable to claims received by VA on or after October 6, 2006.  Id. at 52,458 (Dates).  Inasmuch as the Veteran's claim for service connection was received in July 2002, and his notice of disagreement with the initial rating was received in May 2005, the new provisions are not for application.

The medical evidence in this case includes a private radiology report, dated in January 1997, reflecting that chest x-rays were at that time interpreted to reveal bilateral pleural thickening with calcified pleural plaque, suggestive of previous asbestos exposure and consistent with asbestos-related pleural disease.  There was also a mild diffuse interstitial pattern consistent with asbestos-related parenchymal fibrosis (asbestosis).  Chest x-rays performed in February 2002 by another private physician showed bilateral interstitial fibrosis consistent with asbestosis, silicosis, and coal workers pneumoconiosis, as well as bilateral pleural disease consistent with asbestos-related disease.  In September 2002, the Veteran reported a history of smoking cigarettes in 1958-59 (approximately one half pack per day), from 1965 to 1982 (approximately one pack per day), and again since 2001 (approximately 10 cigarettes per day).

In April 2003, the Veteran underwent a VA respiratory disorders examination.  He reported the onset of breathing problems in 1993, with shortness of breath on physical exertion.  It was noted that he had a known history of coronary artery disease since 1985, that he had had coronary artery bypass surgery, and that he had stayed well and stable until 1993.  It was also noted that he had a history of hypertension since the 1970s, fairly controlled with medication, and that he had been diabetic since the early 1990s.  The Veteran denied any significant smoking.  He indicated that he had smoked a little before a heart attack in 1985, quit, started smoking again in 2000, and smoked for only a few months.  He denied smoking at the time of the examination.  He denied any productive cough or hemoptysis, and it was noted that he was not receiving any specific treatment for his lung condition.

On examination, the Veteran was overweight at 228 pounds.  His color was pink in room air.  Lung auscultation revealed breath sounds without any rales, rhonchi, or wheezing.  There was no evidence of congestive heart failure.  It was noted that chest x-rays in September 2002 were negative for asbestosis.  He had mild cardiomegaly with changes of coronary artery bypass surgery.  Pulmonary function tests were described as within normal limits, with an FVC 81 percent of predicted and an FEV1 of 91 percent of predicted.  The examiner's diagnostic assessment was that the Veteran had a history of asbestos exposure in the past, but that no asbestosis was presently noted, either clinically or radiologically.  In view of past private x-ray reports interpreted to show calcified pleural plaque and parenchymal fibrosis, the examiner recommended examination by a pulmonologist.

The Veteran's case was forwarded to a VA pulmonologist in July 2003.  The examiner reviewed the Veteran's claims file, including his chest x-rays and pulmonary function tests.  The examiner noted that chest x-rays from November 2001 and April 2003 revealed pleural thickening in the left chest, without significant pleural calcification or significant fibrotic changes within the lung fields.  The examiner opined that the Veteran had a pleural disease that, in view of his history, was likely asbestos related.  After reviewing the results of pulmonary function testing in April 2003, which showed, among other things, an FVC 81 percent of predicted and a DLCO 91 percent of predicted, the examiner stated, in pertinent part:

There is no evidence of significant asbestosis either radiographically or by pulmonary function testing.  The fact that the patient's pulmonary function tests are completely normal indicates that there is no significant pulmonary functional impairment.  He does have some pleural disease likely related to asbestos; however, this is considered to be a benign disorder.  Because of the absence of calcification of the pleural disease, it is very possible that this is due to previous lung surgery.

The Veteran underwent evaluation by a private pulmonologist in April and May 2004.  The Veteran reported a 10 pack-year history of smoking, discontinued in 1985, and it was noted that he had a history of coronary artery disease, hypertension, and diabetes.  He reported that he experienced intermittent shortness of breath at rest two or more times per week, accompanied by a feeling of squeezing or tightness at the lower chest margin, bilaterally.  He indicated that the sensation would last for minutes, and that it was relieved by Motrin.  He also reported that he had intermittent difficulty breathing through his nose, and stated that he experienced shortness of breath on exertion after climbing one flight of stairs, and that he experienced intermittent night sweats.  He denied symptoms of arm pain, jaw pain, nausea, diaphoresis, more typical chest pain, and any significant cough or phlegm production.

On examination, the Veteran had clear, mildly-decreased breath sounds without rales, rhonchi, or wheezing.  There was normal chest wall excursion and no accessory muscle use.  There were no abnormalities of tactile fremitus, percussory dullness or egophony.  New chest x-rays were interpreted to reveal borderline cardiomegaly, mild pleural thickening, and postoperative changes of thoracotomy and mediastinal surgery.  Pulmonary function testing revealed a mild obstructive defect with moderately decreased DLCO without restriction.  The post-bronchodilator FVC was 77 percent of predicted and pre-bronchodilator DLCO 52 percent of predicted.  The physician opined that the Veteran had an asbestos-mediated pleural disease, without significant asbestosis, and mild chronic obstructive pulmonary disease (COPD).

The Veteran testified before a Decision Review Officer at the RO in May 2004.  As to his then-current symptoms, he stated, in part, "I have trouble breathing.  Not very often but every once in a while I do have trouble breathing completely.  And if I walk a long distance or something like that."  

VA treatment records reflect the Veteran's periodic complaints of shortness of breath, chest pain, and occasional cough.  The records show that he has been diagnosed with, among other things, diabetes, hypertension, and coronary artery disease.  In December 2003 and July 2004, it was noted that his non-exertional chest pain, which was responsive to Motrin, was likely costal in origin.  In April 2005, he had rhonchi on the left.  In May 2005, a stress test was shown to be positive for ischemia by EKG (electrocardiogram) criteria.  A myocardial perfusion study in July 2005 was interpreted to reveal anterolateral ischemia.  A computed tomography (CT) scan of the chest in August 2005 revealed no evidence of fibrosis or active interstitial lung disease; small calcified pleural plaques consistent with asbestos exposure; a 5-millimeter (mm) left upper lobe nodule that may contain calcium; and some air trapping consistent with COPD.

In November 2005, the Veteran's claims file was sent to a VA examiner for purposes of obtaining an opinion with respect to which of the Veteran's reported symptoms were due to service-connected asbestos-related pleural disease.  The examiner noted that the Veteran had complained of problems with breathing and shortness of breath.  The examiner then observed that asbestos-related disease should have at the very least defined abnormalities on pulmonary function testing and should show evidence of interstitial lung disease.  The examiner noted that pulmonary function testing in May 2005 revealed a normal spirometry, with FVC 81 percent of predicted and normal diffusion capacity (DLCO).  The examiner noted that the results "essentially exclude significant asbestos related disorder that would impair his breath capacity."  The examiner reported that the recent CT scan of the chest revealed no fibrosis or active interstitial lung disease and that the areas of pleural thickening consisted of only very small areas of pleural calcification.  The examiner further observed that it was well known that pleural calcifications and small areas of pleural thickening do not result in any lung impairment, and that that was true even in cases of very extensive pleural disease.  The examiner opined that the Veteran's complaints could not be attributed to asbestos-related pleural disease.  The examiner stated, "Most commonly in this situation, a cardiac disorder impairs one's breathing."

A VA clinical record dated in December 2005 shows that the pulmonary function testing was performed, but that the Veteran had difficulty performing the test and no valid interpretation could be given.  It was noted that that there were several possible explanations for suboptimal effort-such as brain disease, feigned disease, coughing, or other chest discomfort-and that some patients are unable to perform the test.  A CT scan of the chest, also dated in December 2005, revealed a stable 4 mm left upper lobe nodule; and minimal pleural thickening, probably from previous asbestos exposure.

In September 2006, the Veteran was seen at VA for a follow-up appointment.  He denied chest pain, but reported dyspnea and fatigue with or without exertion, usually in the late afternoon.  He indicated that he got a weak feeling with vague discomfort in the upper body, that it felt as though "someone pulls the energy out of me," and that he had a hard time breathing with this symptom.  He reported that his symptoms resolved with sitting, and that Motrin and inhalers were helpful as well.

In March 2007, the Veteran was admitted to the VA Medical Center (VAMC) in Biloxi, Mississippi, because of chest pain, worse with exertion and relieved by nitroglycerin.  He also reported some shortness of breath.  He indicated that he usually did not have chest pain.  On examination, he had dyspnea on exertion.  His breath sounds were clear, bilaterally, with no crackles or wheezes.  A chest x-ray showed stable cardiomegaly, chronic scarring, and no infiltrate.  The clinical assessment was that he had unstable angina, rule out myocardial infarction; coronary artery disease, status post coronary artery bypass graft; diabetes mellitus; hypertension; hyperlipidemia; and history of coin pulmonary lesion by problem list.

The Veteran was subsequently transferred to the VAMC in Houston, Texas, where he was admitted through early April 2007 for further workup of his angina.  He was ruled out for an acute coronary event with three negative sets of cardiac enzymes.  A Persantine Thallium (p-thal) test showed markedly decreased perfusion in the inferior wall of the heart, and the adjacent part of the inferolateral wall, and moderately decreased perfusion in the apex, apical-anterior region, and apical-lateral segment.  Cardiac catheterization revealed diffuse distal native coronary artery disease, for which aggressive medical management was recommended.  A CT scan in June 2007 revealed a stable 4 mm partially calcified nodule in the left upper lobe, unchanged since 2005, most likely a granuloma; and minimal bilateral calcified plaques, also unchanged since 2005.

In June 2008 the Veteran was noted to have a lesion on his lung that was very tiny and calcified.  It was reported to be unchanged from 2005 to 2007.

In February 2009, the Veteran was hospitalized at the Biloxi VAMC with a chief complaint of increasing shortness of breath, worse when lying down.  He also complained of increased cough, an increased feeling of tightness in his chest and a squeezing feeling in his throat while lying down, and elevated blood pressure.  It was noted that he had a history of coronary artery disease status post coronary artery bypass grafting in 1985; diabetes complicated by retinopathy; hypertension; hyperlipidemia; asbestosis; benign prostatic hypertrophy; erectile dysfunction; osteoarthritis; gout; COPD; and congestive heart failure.  It was also noted he used Albuterol and an ipratropium metered-dose inhaler four times a day for breathing.

The Veteran was treated in the emergency room with oxygen, furosemide IV, aspirin, and nitroglycerin ointment.  On examination, he had bibasilar rales, but his lungs were otherwise clear to auscultation without wheezes or rhonchi, and he had good movement in all air fields.  An EKG revealed a normal sinus rhythm with some sinus arrhythmia, normal intervals, R axis of positive 82, and no ischemic ST wave changes.  A chest x-ray revealed changes consistent with COPD and the changes of past coronary artery bypass grafting, but no acute cardiopulmonary disease or change since 2005.  The final diagnostic impression was that he had congestive heart failure, probably simply due to volume overload and insufficient diuretics and also possibly aggravated by acute hypertensive urgency; coronary artery disease and known cardiomyopathy with left ventricular ejection fraction of 35 percent; hypertension with a history of being out of control; diabetes mellitus, type 2, complicated by retinopathy; hyperlipidemia; gout in the presence of an acute flare; COPD; benign prostatic hypertrophy; and gastroesophageal reflux disease.

Pulmonary function testing in April 2009 revealed a mildly reduced forced vital capacity (65 percent), reduced FEV1/FVC, severely reduced FEV1, mild restriction (total lung capacity 73), and moderately reduced DLCO (51 percent).  It was noted that there was significant improvement in mid-expiratory flows with inhaled bronchodilator.  The flow-volume loop indicated "[l]ess than stellar effort."  The Veteran's effort and cooperation were suboptimal and the effort dependent portions of the test were noted to not be reliable.  The impression was severe obstruction with bronchodilator effect and mild restriction with moderate diffusion impairment.

The Veteran underwent a VA respiratory disorders examination in April 2009 for purposes of assessing the severity of his service-connected asbestos-related pleural disease.  He complained of increasing symptoms of shortness of breath, mainly in the last four or five years, and reported that he had been admitted to the hospital recently.  He also complained of night sweats.  It was noted that he used an Albuterol inhaler, two puffs every six hours, for breathing, and that he had used a Combivent inhaler every six hours for the last three or four years.

On examination, the Veteran's lungs were clear to auscultation.  Pulmonary function testing resulted in a FVC 65 percent of normal and a DLCO 51 percent of normal.  However, it was noted that effort and cooperation were suboptimal, and that the effort-dependent portions of pulmonary function testing were not reliable.  The examiner also noted that a CT scan in September 2008 showed a 3 mm left upper lobe nodule, and minimal bilateral pleural calcifications, with no change since 2006, and that there was no evidence of pulmonary hypertension or cor pulmonale on echocardiogram in January 2009.

After examining the Veteran and reviewing the claims file, including the reports of past testing, the examiner consulted with a pulmonologist, who informed the examiner that the results of pulmonary function testing showed very poor effort, and were not reliable, and that radiographs did not show much abnormality, with areas of pleural thickening consisting of only very small areas of calcification, which do not result in any lung impairment, and no objective CT evidence of fibrosis or interstitial lung disease.  The final conclusion was that the Veteran's clinical symptom of shortness of breath could not be attributed to his service-connected disability.

The Veteran had in patient treatment in June 2012 for dyspnea on exertion.  Chest x-ray was noted to reveal no acute pulmonary infiltrates and mild chronic appearing interstitial lung disease.  The impression was chest pain/dyspnea.  It was reported that given the increasing frequency of the latter in addition to mild Troponin elevation, the Veteran's current condition represents unstable angina/ACS at a minimum.  It was noted that Keesler was to accept the Veteran for interventional cardiology.

An echocardiogram, dated in June 2012, revealed mild tricuspid regurgitation suggesting pulmonary artery systolic pressure of 41 mmHg, which was noted to be mild to moderate pulmonary hypertension.

In October 2012, the Veteran underwent a VA respiratory disorders examination.  The examiner noted past tobacco use ending in 1984.  Pertinent medications included Albuterol, two puffs every six hours for breathing.  The examiner diagnosed the Veteran with service connected asbestosis without any significant change, moderately severe COPD with medication with mild limitation, and CAD/CABG with cardiomegaly, congestive heart failure, with bilateral pleural effusion, and moderately severe functional limitation.  

The examiner noted, a chest x-ray from July 2012 showed CABG, a pacemaker, cardiomegaly, and bilateral pleural effusions consistent with congestive failure.  A CT scan from June 2012 showed cardiomegaly, pleural effusions, pulmonary venous congestion and early edema, and bibasilar atelectasis or infiltrates.  The Veteran underwent pulmonary function testing as part of a VA examination.  The pre-bronchodilator results were FVC 46 percent predicted, FEV-1 49 percent predicted, FEV-1/FVC 67 percent, and DLCO 22.6 percent predicted.  The post-bronchodilator results were FVC 48 percent predicted; FEV-1 52 percent predicted, FEV-1/FVC 71 percent, and DLCO 49 percent predicted.  

It was reported that the Veteran did not have any cardiopulmonary complications, including cor pulmonale and pulmonary hypertension.

The examiner opined that there is no significant change noted to asbestosis.  The examiner also opined that the Veteran's recent cardiac condition with CABG, ischemic cardiomyopathy, congestive heart failure causing bilateral pleural effusions has been the underlying caused for his respiratory failure.  The examiner noted that the Veteran's respiratory condition did not impact on his ability to work.

In January 2013, the Veteran was hospitalized for shortness of breath.  The results of pulmonary function testing showed severely reduced FEV1 at 49 percent; the Veteran's FEV1/FVC was lower normal, and his DLCO was moderately reduced.  

In February 2013 it was noted that the plan included a home oxygen evaluation request.

In April 2013 a VA medical specialist provided opinions regarding the Veteran's respiratory disability.  The specialist reported that the Veteran's asbestos related pleural disease was "minimal."  Bilateral asbestos-related pleural plaques with calcification are by definition clinically assymptomatic.  They are considered a marker of asbestos exposure but no symptoms can be attributed to their presence alone.

The Veteran's decrease in pulmonary function is not the result of the presence of asbestos-related pleural plaques/disease.  The specialist noted that it was most likely that the reduction is caused by a combination of COPD and heart disease, but it is impossible to assign a precise contributing percentage to each one of these possibilities.

The specialist also noted that another possibility was that the Veteran has been unwilling or unable to perform appropriately for the measurement of these pulmonary function studies.  The specialist identified a report of a subobtimal effort.

The specialist indicated that the only totally reliable set of pulmonary function studies were obtained in 2003, and that showed no evidence of COPD or volume-restrictive defect to suspect asbestosis.

The specialist noted that the deterioration of pulmonary function tests if it is real could be due to those factors noted above.

The specialist indicated that there are no clinical symptoms that can be attributed to asbestos-related pleural plaques/disease alone.  The condition by itself is totally assymptomatic and is just a marker of asbestos exposure.  It was reported that neither shortness of breath, chest discomfort, chronic fatigue, lack of endurance, breathlessness, or chest pain on exertion can be caused by bilateral asbestos-related pleural plaques/disease alone.

Lastly, the specialist rendered the opinion that neither COPD nor cardiac disease can be caused or aggravated by the sole presence of bilateral asbestos-related plaques/disease.  

The Board notes that inpatient treatment records reveal that the Veteran was treated with oxygen. 

Based on review of all of the evidence of record, the Board finds that entitlement to a compensable initial rating for asbestos-related pleural disease is not warranted.  It is undisputed that radiographic studies confirm the presence of abnormalities described as indicative of asbestos-related disease; however, the preponderance of the evidence establishes that the Veteran's complaints of shortness of breath cannot be attributed to his service-connected disability.

The Board has noted that the reports of a private examiner who evaluated the Veteran in April and May 2004 appear to reflect an implicit conclusion that the Veteran's shortness of breath might be attributable to service-connected asbestos-related pleural disease, inasmuch as the private reports contain findings of abnormality on pulmonary function testing, followed by a diagnostic assessment that includes asbestos-mediated pleural disease.  However, no rationale is articulated for such a causal relationship.  Accordingly, and because the reports also imply that COPD (which is not service connected) may likewise be a cause of the Veteran's complaints, the April and May 2004 private reports of are of limited probative value.  See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight).

The Board further acknowledges that in February 2013 it was noted in the plans that a home oxygen evaluation was to be requested.  

In addition, in June 2012 an echocardiogram was noted to reveal results suggestive of pulmonary hypertension.

However, VA examiners in November 2005 and April 2009 concluded based, in part, on CT scans showing no evidence of fibrosis or active interstitial lung disease, and the normal or inconsistent results of pulmonary function testing, that the Veteran's complaints could not be attributed to his service-connected asbestos-related pleural disease.  These opinions appear to be consistent with the observation by the VA pulmonologist in July 2003, who described the Veteran's asbestos-related pleural disease as "benign."

Although PFTs performed as part of the October 2012 VA examination revealed reduced FVC, FEV-1, and DLCO, the opinion was rendered that the Veteran's recent cardiac condition with CABG, ischemic cardiomyopathy, congestive heart failure causing bilateral pleural effusions has been the underlying cause for his respiratory failure.  In addition, no cardiopulmonary complications, including cor pulmonale and pulmonary hypertension were found.

In addition, in April 2013, after a complete review and discussion of the evidence, a VA specialist rendered the opinion that the Veteran's asbestos related pleural disease was minimal, that the decrease in pulmonary function was not the result of the presence of asbestos-related pleural plaques/disease, that there were no clinical symptoms that can be attributed to asbestos-related pleural plaques/disease, and that the condition is totally asymptomatic.  The specialist further rendered the opinion that neither COPD nor cardiac disease can be caused or aggravated by the sole presence of a bilateral asbestos-related plaques/disease.

Inasmuch as November 2005, April 2009, and October 2012 VA examiners and the April 2013 VA medical expert reviewed the claims file, and articulated clear reasons for their conclusions, their opinions are entitled to much greater weight that the private reports from April and May 2004, to the extent that those reports suggest a contrary conclusion.  Accordingly, and because the evidence also shows that Veteran does not require outpatient oxygen therapy for treatment of service-connected asbestos-related pleural disease, and that his disability is not manifested by pulmonary hypertension or cor pulmonale, the claim for an initial compensable rating must be denied.

In evaluating the Veteran's claim, the Board has specifically considered whether he is entitled to a "staged rating."  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  It is the Board's conclusion, however, that the Veteran's asbestos-related pleural disease has never been more than noncompensably disabling since the time that the underlying claim for service connection was filed in July 2002.  A "staged rating" is not warranted.

To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer a case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability.  38 C.F.R. § 3.321(b)(1) (2012).  The criteria for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.

The Board has considered whether the Veteran's claim should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted.  The Veteran's respiratory complaints are fully contemplated by the relevant diagnostic criteria.  There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards.  See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008).

The Board notes that in the Substantive Appeal on a VA Form 9 dated in January 2006 the Veteran stated, in part, "I have suffered pain and breathlessness exertion since 1993 when I had to leave a $70,000 a year job because of it."  However, the evidence reveals a report that the Veteran has been retired since 2000 and in October 2012 a VA examiner noted that the Veteran's respiratory condition did not impact on his ability to work.  In addition, the Veteran has not contended that his service-connected disability renders him unemployable.  As such, the issue of entitlement to a total disability rating based on individual unemployability has not been reasonably raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).


ORDER

A compensable initial rating for asbestos-related pleural disease is denied.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs