Citation Nr: 1328115 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-27 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial compensable rating for pleural plaques. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to August 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, awarded entitlement to service connection for pleural plaques and assigned a noncompensable evaluation effective July 27, 2007. Jurisdiction over the claims file is currently held by the RO in Boston, Massachusetts. In March 2013, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. The Board remanded the case for further action by the originating agency in April 2013. The case has now returned to the Board for further appellate action. This appeal was processed using the paperless Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. When the appeal was before the Board in April 2013, a claim for entitlement to service connection for restrictive lung disease as secondary to service-connected pleural plaques was referred to the Agency of Original Jurisdiction (AOJ) for development and adjudication. The record before the Board does not indicate that any action has been taken on this claim and it is once against referred to the AOJ. FINDING OF FACT Throughout the claims period, the Veteran's pleural plaques have not manifested any respiratory pathology; his Forced Vital Capacity (FVC) is greater than 75 to 80 percent predicted and his Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is greater than 66 to 80 percent predicted. CONCLUSION OF LAW The criteria for an initial compensable rating for pleural plaques have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6833 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for pleural plaques associated with asbestos exposure was granted in the January 2008 rating decision on appeal. An initial noncompensable evaluation was assigned effective July 27, 2007. The Veteran contends that a compensable rating is warranted for his disability as it is productive of shortness of breath that affects his ability to walk and climb stairs. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's service-connected pleural plaques are currently rated as noncompensably disabling under Diagnostic Code 6833 pertaining to asbestosis and the General Rating Formula for Interstitial Lung Disease. Under the general rating formula, a 10 percent disability rating is warranted for asbestosis where the evidence shows FVC of 75 to 80 percent predicted, or; (DLCO (SB) of 66 to 80 percent predicted. A 30 percent rating is warranted with FVC of 65 to 74 percent, or a DLCO (SB) of 56 to 65 percent predicted. A 60 percent evaluation requires 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 evaluation requires demonstrated evidence of an FVC of less than 50 percent of predicted value, or; DLCO (SB) of less than 40 percent of predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiac or respiratory limitation, or; cor pulmonale (right heart failure) or pulmonary hypertension, or; requires outpatient oxygen therapy. VA amended the rating schedule concerning respiratory conditions during the course of this appeal effective October 6, 2006; however, these changes concerned "special provisions" pertaining to the use of pulmonary function tests (PFTs) for the evaluation of respiratory conditions. The provisions did not alter the general rating formula described above. Specifically, under 38 C.F.R. § 4.96(a), ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 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). Additionally, the revision required that PFTs be used to evaluate respiratory conditions unless (i) the results of maximum exercise capacity test were of record and were 20 ml/kg/min or less; (ii) there was pulmonary hypertension, cor pulmonale, or right ventricular hypertrophy; (iii) there was one or more episode of acute respiratory failure and (iv) when outpatient oxygen therapy was required. 38 C.F.R. § 4.96 also provides that if a DLCO (SB) test is not of record, evaluation should be based on alternative criteria as long as the examiner states why the DLCO (SB) test would not be useful or valid in a particular case. When the PFTs are not consistent with clinical findings, evaluation should generally be based on the PFTs unless there is an explanation by the examiner as to why the PFTs were not a valid indicator of respiratory function. The evaluation should be based upon the post-bronchodilator studies unless those are poorer than the pre-bronchodilator results. In that case, the pre-bronchodilator values should be used for rating purposes. When the results of different PFTs (FEV-1, FVC, etc.) are disparate, the test result that the examiner states most accurately reflects the level of disability should be used for evaluation. Finally, 38 C.F.R. § 4.96 provides that if the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio should not be assigned. After review of the evidence of record, the Board finds that a compensable evaluation is not warranted for the Veteran's service-connected pleural plaques at any time during the claims period. Although imaging studies performed at the West Roxbury VA Medical Center (VAMC) and in conjunction with various VA examinations have confirmed the existence of pleural plaques associated with asbestos exposure, there is no competent medical evidence establishing respiratory pathology or other symptomatology associated with the service-connected condition. The Veteran's VA and private medical records are negative for findings indicating that his pleural plaques manifest any actual symptoms or require treatment. In a September 2005 letter, a private physician noted that a chest CT showed bilateral calcified pleural plaques, but the Veteran's vital and diffusion capacity was characterized as normal. A report of a February 2007 office visit from the same physician also notes that the Veteran demonstrated lung plaques but no true asbestosis. Similar findings are noted in the Veteran's VA treatment records; a March 2013 pulmonologist concluded that the Veteran had no diffusion defect and the results of his prior pulmonary function tests (PFTs) were more consistent with his body habitus than actual parenchymal lung disease. In fact, the competent medical evidence universally attributes the Veteran's problems with chest restriction to the Veteran's obesity. His private physician identified a "tendency to chest restriction" in the September 2005 letter, but this finding was not specifically related to the Veteran's pleural plaques. The private doctor also noted that the Veteran should be monitored as he was at risk for future interstitial lung disease. The VAMC pulmonologist and an October 2008 VA examiner also found that the Veteran's low lung volume was due to his body habitus. Additionally, VA examinations conducted in May 2007, October 2008, and May 2013 weigh against the assignment of a compensable rating for the Veteran's service-connected disability. The May 2007 VA examiner found that the pleural plaques did not compromise the Veteran's respiratory pathology and there was no evidence of interstitial lung disease or abnormal PFT results. The October 2008 VA examiner also found that the previous chest CTs and normal gas exchange values noted in PFTs argued against the presence of any significant parenchymal or interstitial lung disease. Finally, the most recent VA examiner concluded in a May 2013 report and June 2013 addendums that the Veteran's pleural plaques did not themselves result in any disability. A chest CT and PFT performed in conjunction with the examination were negative for indications of interstitial pulmonary fibrosis or other evidence of asbestos-related disease and the Veteran's FVC measured to 97 percent predicted with a DLCO of 96 percent predicted. As noted above, the Veteran's service-connected pleural plaques are evaluated under Diagnostic Code 6833 and the General Rating Formula for Interstitial Lung Disease based on impairment to forced vital capacity or diffusion capacity. The competent medical evidence of record establishes that the Veteran does not manifest any actual respiratory pathology as a result of his service-connected disability. PFT results dated throughout the claims period have been normal, and the Veteran's chest restriction is the result of nonservice-connected obesity. The Board has considered the Veteran's complaints of a chronic cough and shortness of breath on exertion (with prolonged walking or climbing ladders or stairs), but finds that the objective medical evidence, such as the opinions of the three VA examiners, is more probative in determining the actual severity of the service-connected condition. The Veteran is competent to report the symptoms he experiences, including a cough and dyspnea, but he is not competent to relate these symptoms to a specific etiology such as his pleural plaques. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). The Veteran also denied requiring any treatment for his service-connected condition; during the May 2013 VA examination he denied requiring any form of medication, including inhalers, to treat the disability on appeal. The competent medical evidence of record therefore establishes that the Veteran's service-connected pleural plaques are not productive of any disabling manifestations. The disability clearly does not most nearly approximate the criteria associated with a compensable evaluation under Diagnostic Code 6833 and the claim must be denied. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's pleural plaques are manifested by calcified plaques in the bilateral lungs that are not productive of any respiratory pathology. These manifestations are contemplated in the rating criteria and the current noncompensable evaluation. The rating criteria are therefore adequate to evaluate the disability and referral for consideration of extraschedular rating is not warranted. Entitlement to a TDIU is also an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the record is negative for evidence that the Veteran is unemployable. He is not in receipt of Social Security disability benefits and has continued to work as a pipefitter at Portsmouth Navy Yard throughout the claims period. There is no medical evidence that the Veteran's pleural plaques have interfered with his employment, and the Veteran has not stated that he has lost any time from work or is unable to perform his duties due to the service-connected condition. Therefore, remand of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected pleural plaques. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran has initiated an appeal regarding the initial disability rating assigned following an award of service connection. The claim for service connection for the disability on appeal is now substantiated and the filing of a notice of disagreement (NOD) as to the January 2008 rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2011). Rather, the Veteran's appeal as to the initial disability rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a NOD in response to a decision on a claim, the AOJ must take development or review action it deems proper under applicable regulations and issue a statement of the case (SOC) if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the NOD. However, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. 38 C.F.R. § 3.159(b)(3). As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. The May 2009 SOC, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code for rating the disability at issue, and included a description of the rating formula for all possible schedular ratings under this diagnostic code. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluations that the RO assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Veteran was afforded proper VA examinations (with accompanying PFTs and imaging studies) in May 2007, October 2008, and May 2013 in response to the claim for an increased initial rating. VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. The Veteran has reported undergoing private treatment with Pentucket Medical Association (PMA) and Dr. Charles Randall. VA made multiple requests to the private facility and physician in May, June, and August 2007. In a May 2007 correspondence, PMA indicated that they had no records pertaining to the Veteran; however, in September 2007, VA received a February 2007 PMA examination report and a duplicate copy of a September 2005 letter from Dr. Randall describing the severity of the Veteran's pleural plaques. In light of the May 2007 response from PMA and the absence of a reply to VA's other requests for records, the Board finds that all available records of private treatment have been associated with the claims file. The Board also finds that VA has complied with the April 2013 remand orders of the Board. In response to the Board's remand, VA obtained copies of all records pertaining to pulmonary treatment from the West Roxbury VAMC. The Board's remand also specified that efforts should be made to obtain any records of private treatment not currently associated with the record, including an April 2008 private chest X-ray. In a May 2013 letter, VA requested that the Veteran complete a medical release form to allow for VA to obtain records of private treatment on his behalf, including the April 2008 private X-ray report. No response to this request was received and it is clear that VA has done it utmost to develop the evidence in connection with the Veteran's claim. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992) (It is the responsibility of Veterans to cooperate with VA). The Veteran was also provided a VA pulmonary examination in May 2013 with a chest CT and PFT in June 2013. The case was then readjudicated in a July 2013 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to an initial compensable rating for pleural plaques is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs