Citation Nr: 1336871 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-04 378 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to an increased evaluation in excess of 10 percent for the service-connected asbestos-related pleural plaques prior to July 12, 2012. 2. Entitlement to an increased evaluation in excess of 30 percent disabling for the service-connected asbestos-related pleural plaques beginning on July 12, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to September 1966. He has additional service with the Naval Reserve. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2009 by the RO. The Veteran provided testimony at a hearing held at the RO before the undersigned Veterans Law Judge in May 2012. A transcript of the hearing is associated with the claims file. In a June 2012 decision, the Board assigned an increased initial evaluation of 10 percent for the service-connected asbestos-related pleural plaques beginning on September 12, 2008 and remanded the claim for increase for the period beginning on May 1, 2010. In a September 2012 rating decision, the Veteran was awarded a 30 percent rating beginning on July 12, 2012. As a higher rating for this disability is assignable before and after this date, and the Veteran is presumed to seek the maximum available benefit, the Board has characterized the appeal as encompassing both matters as set forth on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). A review of the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Prior to July 12, 2012, the service-connected asbestos-related pleural plaques is shown to have been productive of a disability picture that more nearly approximated that of testing manifested by a level of Forced Vital Capacity (FVC) between 65 to 74 percent of predicted. 2. Beginning on July 12, 2012, the service-connected asbestos-related pleural plaques is shown to have been productive of a disability picture that was manifested by testing showing worse than a FVC between 65 to 74 percent of predicted. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 30 percent evaluation prior to July 12, 2012 for the service-connected asbestos-related pleural plaques have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.97 including Diagnostic Codes 6899-6833 (2013). 2. The criteria for the assignment of a rating greater than 30 percent beginning on July 12, 2012 for the service-connected asbestos-related pleural plaques have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.97 including Diagnostic Codes 6899-6833 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 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) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. 38 C.F.R. § 3.159(b)(1). The VCAA letters dated in October 2008, December 2008, and May 2009 explained the evidence necessary to substantiate the claim for service connection and higher initial ratings. These letters also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the VCAA notice letters from VA were provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from a Notice of Disagreement (NOD) with the initial evaluation following the grant of service connection. This NOD does not give rise to additional duty to notify on the part of VA. Dingess/Hartman, 19 Vet. App. 473; 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement). With regard to the duty to assist, the claims file contains service treatment records and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). The Veteran's statements in support of the claim are of record, including testimony provided at the May 2012 hearing. The hearing focused on the elements necessary to substantiate his increased rating claim, and the Veteran through his testimony demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012). The Board can adjudicate the claim based on the current record. Finally, the RO substantially complied with the Board's June 2012 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Specifically, the results of a VA examination and pulmonary function test (PFT), as requested by the June 2012 remand, are of record. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Increased rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where 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 required for that rating; otherwise, the lower rating will be assigned. 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. 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). The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). During the course of this appeal, staged disability ratings were assigned for the Veteran's service-connected disability. As discussed above, the Veteran's asbestos-related pleural plaques was assigned a 10 percent rating beginning September 12, 2008, and a 30 percent rating beginning July 12, 2012. The service-connected asbestosis-related pleural plaques is evaluated under the provisions of 38 C.F.R. § 4.97 that includes Diagnostic Code (DC) 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 (2013). The rating criteria are as follows: A 10 percent evaluation is assigned in cases of Forced Vital Capacity (FVC) between 75 to 80 percent predicted, or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of between 66 to 80 percent predicted. A 30 percent evaluation is assigned for FVC between 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, 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 is warranted for FVC less than 50 percent predicted, DLCO (SB) less than 40 percent predicted, maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, cor pulmonale or pulmonary hypertension, or where the condition requires outpatient oxygen therapy. 38 C.F.R. § 4.97. These criteria are disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) (finding only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Furthermore, the rating criteria contemplate pulmonary function test results post-therapy, which is the standard basis for comparison of pulmonary function. See 38 C.F.R. § 4.96(d)(5). If the DLCO (SB) test is not of record, an evaluation may be based on alternative criteria as long as the examiner states why that test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). When the pulmonary function tests are not consistent with clinical findings, an evaluation is based on the pulmonary function tests unless the examiner states why they are not a valid indication of respiratory functional impairment in a given case. 38 C.F.R. § 4.96(d)(3). When evaluating based on pulmonary function tests, post-bronchodilator results are used in applying evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre-bronchodilator values are used for rating purposes. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different pulmonary function tests forced expiratory volume in one second (FEV-1) and FVC, so that the level of evaluation would be different depending on which test result is used, the test result is used that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). Analysis An August 2010 VA examination noted that the Veteran's pulmonary function tests in August 2009 showed a total lung capacity of 79 percent of predicted, a FVC of 77 percent of predicted, and a normal DLCO. The Veteran reported that his breathing was worse than it had ever been on the day of the examination and attributed this to the weather being hot. He complained of having increasing dyspnea over time and having people at work pound on his chest due to his bad breathing. The examiner noted the Veteran's use of Asmanex and Albuterol every other day for asthma. The examination report included findings from pulmonary function testing performed in May 2010. The PFT showed mild restriction with a total lung capacity of 76 percent of predicted, FVC reduced to 72 percent of predicted on pre-bronchodilator and to 68 percent of predicted on post-bronchodilator. DLCO was not performed. In an addendum, the August 2010 VA examiner indicated that a high resolution CT showed evidence of pleural plaques consistent with prior asbestos exposure, but not interstitial lung disease/asbestosis. The examiner added that an April 2010 PFT revealed mild restriction with a total lung capacity of 76 percent of predicated and a FVC of 72 percent of predicated on pre-bronchodilator, and 68 percent of predicated on post-bronchodilator. An August 2010 VA examiner noted that no DLCO result was available, but opined that because the DLCO was normal on testing in 2009 and the absence of evidence of interstitial lung disease and a high resolution CT, it was not expected that the DLCO would change significantly in the interim. The VA examiner noted that the Veteran had evidence of asbestos exposure, with asbestos-related pleural plaques, but no evidence of asbestosis. The examiner opined that the Veteran's best FVC was 72 percent predicted, which likely best reflected the extent of current pulmonary disability related to his asbestos exposure. In a second addendum, the August 2010 VA examiner addressed the Veteran's complaints of increased symptoms of dyspnea. He opined that that the deterioration of the Veteran's respiratory condition, since a March 2009 VA examination was related to the Veteran's asthma and not his asbestos-related pleural plaques. At his May 2012 hearing, the Veteran reported using antibiotics twice a year and having pneumonia on several occasions. He testified that he used oxygen only when necessary, but that his physician told him that he might need to be on oxygen on a full or part time basis. The Veteran underwent a VA examination in July 2012. He reported using corticosteroids and inhaled medicine for his respiratory condition. The Veteran did not require oxygen therapy. The examiner noted that the Veteran's respiratory condition did not result in cardiopulmonary complications such as cor pulmonale, right ventricular hypertrophy or pulmonary hypertension. The Veteran was noted to be employed and reported that his missed work only due to his medical appointments. He also reported having shortness of breath and needing to take frequent breaks. A July 2012 pulmonary function test revealed an FVC of 66-74 percent of predicted, FEV1 of 62-76 percent of predicted, FEV1/FVC of 93-102 percent of predicted, and Dsb of 63 percent. The technician noted that the Veteran was unable to use the Plethysmograph box due to his BMI and spinal cord disease. The examiner found moderate obstruction with a positive bronchodilator response. There was mild restriction and gas exchange was mildly impaired. The examiner noted that mixed obstructive and restrictive disease was suggested. A. Prior to July 12, 2012 In reviewing the evidence, the Board finds that the service-connected disability picture more nearly resemble the criteria for the assignment of a 30 percent evaluation for the period prior to July 12, 2012. In particular, the August 2010 VA examiner stated that the Veteran's best FVC was 72 percent of predicted and reflected the extent of current pulmonary disability related to his asbestos exposure, which was consistent with a 30 percent evaluation. See 38 C.F.R. § 4.97, Diagnostic Code 6833. A higher evaluation is not warranted for the period prior to July 12, 2012 because at no point during this initial period of the appeal did the PFT results show FVC between 50 to 64 of predicted or a DLCO (SB) of 40 to 55 percent of predicted. In fact, the results from a May 2010 and April 2010 PFT show FVC of 68 percent of predicted. These results do not support the assignment of higher than a 30 percent evaluation. The Board also finds that a higher evaluation for this period of appeal is not warranted prior to July 12, 2012 because the evidence does not show a FVC of 50 to 60 percent of predicted or a DLCO (SB) of 40 to 55 percent of predicted or a DLCO (SB) of less than 40 percent of predicted. Thus, on this record, an initial increased rating of 30 percent evaluation for this period of appeal is warranted. B. Beginning on July 12, 2012 The service-connected pulmonary disability is assigned a 30 percent rating beginning on July 12, 2012. Based on the record, the Board finds that a higher rating for the service-connected asbestos related pleural plaques is not warranted for the period of the appeal. At no time since July 12, 2012, did PFT testing show a FVC that was less than 65 percent of predicted or DLCO that was less than 56 of predicted. During this period of the appeal, PFT did not show FVC of less than 50 percent of predicted or a DLCO(SB) less that 40 percent of predicted so as to warrant a 100 percent evaluation. The Board notes that maximum exercise capacity was not tested during this period; therefore, the condition must be evaluated on alternative criteria. 38 C.F.R. § 4.96(d)(i). The Board also notes that there is no evidence of cor pulmonale or pulmonary hypertension and that the Veteran has not required outpatient therapy. Thus, a higher evaluation for this period is not warranted. In conclusion, the evidence reflects that for the period beginning on July 12, 2012, the service-connected pulmonary disability does not warrant the assignment of a rating in excess of 30 percent. Extraschedular Considerations The Board's findings are based on schedular evaluation. The service-connected asbestos-related pleural plaques are not shown to be productive of an unusual or exceptional disability picture so as to obviate the application of the established rating standards in this case. The Veteran's disabling manifestations as identified are reasonably addressed by the rating criteria. As such, the Board is not required to remand this matter to the RO for referral actions outlined in 38 C.F.R. § 3.321(b)(1), which concerns the assignment of extraschedular evaluation in "exceptional" cases. See Thun v. Peakļ22 Vet. App. 111, 115 (2008). As a final matter, the Board notes that under Rice v. Shinseki, 22 Veteran. App. 447 (2009), the Board must remand an increased rating issue if the Veteran, or the evidence of record raised the matter of individual unemployability. However, in this case, the Veteran acknowledges being employed during the pendency of this appeal; hence, any development or consideration under Rice is not indicated at this time. ORDER An increased evaluation of 30 percent, but no higher for the service-connected asbestos-related pleural plaques prior to July 12, 2012 is granted, subject to the regulations controlling disbursement of VA monetary benefits. An increased evaluation in excess of 30 percent for the service-connected asbestos-related pleural plaques beginning on July 12, 2012 is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals