Citation Nr: 1338256 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 13-12 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to a rating in excess of 10 percent for asbestos-related pleural plaques. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from August 1953 to June 1955. This matter initially comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which, in pertinent part, increased the rating for the Veteran's service-connected asbestos-related pleural plaques to 10 percent effective December 18, 2009. The Veteran appealed the disability rating assigned. A Travel Board hearing was scheduled for a date in June 2013; however, the Veteran elected to submit additional evidence in lieu of the hearing. The case was held open for 30 days to allow him time to submit further evidence. Later that month, the Veteran submitted additional private treatment records and waived initial consideration of this evidence by the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2013). The Veteran's paper claims file and electronic folder in Virtual VA and the Veterans Benefits Management System (VBMS) have been reviewed in conjunction with the disposition of the issue on appeal. It is noted that the electronic folder in Virtual VA contains VA outpatient treatment records dated from August 2010 to November 2012, which were initially considered by the AOJ in a March 2013 Statement of the Case (SOC). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran's service-connected asbestos-related pleural plaques do not cause his respiratory symptoms or functional impairment and that his dyspnea and pulmonary hypertension are due to nonservice-connected disabilities, such as chronic obstructive pulmonary disease (COPD), coronary artery disease (CAD), debility and deconditioning. 2. During the appeal period, the Veteran's service-connected asbestos-related pleural plaques were not manifested by Forced Vital Capacity (FVC) less than 75 percent of the predicted value or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 66 percent of predicted value. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for asbestos-related pleural plaques are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.14, 4.27, 4.96, 4.97, Diagnostic Code 6899-6833 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In a letter dated in January 2013, VA notified the Veteran of the information and evidence needed to substantiate a claim for increase, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The claim was readjudicated in a March 2013 SOC. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order with respect to the issue decided below. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, however, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of the 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. The Veteran's asbestos-related pleural plaques have been evaluated under Diagnostic Code 6899-6833. Pursuant to 38 C.F.R. § 4.27, 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; unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and "99." Hence, the Veteran's pleural plaques are rated by analogy, using the criteria for asbestosis under Diagnostic Code 6833, which in turn is evaluated under the General Rating Formula for Interstitial Lung Disease. 38 C.F.R. § 4.97. Under the General Rating Formula for Interstitial Lung Disease, a 10 percent evaluation is warranted for FVC of 75 to 80 percent of predicted or DLCO of 66 to 80 percent of predicted. A 30 percent evaluation requires FVC of 65 to 74 percent of predicted or DLCO of 56 to 65 percent of predicted. A 60 percent evaluation requires FVC of 50 to 64 percent of predicted; DLCO of 40 to 55 percent of predicted; or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 100 percent evaluation requires FVC of less than 50 percent of predicted; DLCO of less than 40 percent of predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation; cor pulmonale or pulmonary hypertension; or requires outpatient oxygen therapy. Id. 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). When the pulmonary function tests are not consistent with clinical findings, 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). Post-bronchodilator studies are required when pulmonary function tests 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 tests should not be done and states why. 38 C.F.R. § 4.96(d)(4). 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). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Analysis In this case, the Veteran asserts that his service-connected asbestos-related pleural plaques should be rated higher than 10 percent. For the reasons outlined below, the Board finds that a rating higher than 10 percent is not warranted during the appeal period. The Veteran's pulmonary disability is primarily manifested by dyspnea/shortness of breath with minimal exertion. His condition is complicated by a number of nonservice-connected disabilities, including emphysema or COPD, asthma, and CAD. He also has a history of bronchitis, pneumonia, anemia, and Lyme's disease. The Board notes that where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). See, 38 C.F.R. § 4.14 (2013). Here, however, as will be explained below, competent and probative medical evidence distinguishes the symptoms attributable to his service-connected pleura plaques from those attributable to nonservice-connected disabilities. A December 2009 private PFT indicated that FVC was 87 percent and DLCO was 71 percent of the predicted values pre-bronchodilator. Post-bronchodilator measurements were not taken. A July 2012 VA PFT showed that FVC was 56 percent pre-bronchodilator and 53 percent post-bronchodilator. DLCO was 39 percent pre-bronchodilator; DLCO was not measured post-bronchodilator. An April 2013 private PFT revealed that FVC was 86 percent pre-bronchodilator and 72 percent post-bronchodilator. DLCO was 63 percent pre-bronchodilator; DLCO was not measured post-bronchodilator. The evidence also indicates that the Veteran has a history of pulmonary hypertension. (See January 2013 VA medical opinion, and June 2013 private medical records from Dr. H.S.). The Board acknowledges that the July 2012 and April 2013 PFT results are consistent with ratings higher than 10 percent under Diagnostic Code 6833. However, the evidence indicates that the Veteran's pulmonary symptoms are not attributable to his pleural plaques, but rather his other nonservice-connected disabilities. The most probative evidence differentiating his symptoms is the January 2013 VA medical opinion. The clinician reviewed and discussed in length the Veteran's pertinent medical history, including radiological findings, PFTs, and heart catherizations. The examiner noted that chest radiographs showed a minimal calcified plaque somewhere near the left hemidiaphragm and that is was only noted on four of the eleven reports reviewed. Two CT scans mentioned significant emphysematous changes through both lungs and the most recent scan specifically mentioned that there was no evidence of interstitial lung disease or air space disease. The examiner also noted the Veteran's extensive history of CAD with 80 to 90 percent stenosis in a large left obtuse marginal coronary artery and a mild degree of pulmonary venous hypertension. The examiner noted that spirometric studies between 1999 and 2012 all revealed a mild to moderate degree of obstructive airway disease with the exception of the July 2012 study, which revealed a mixed obstructive and restrictive defect. The examiner indicated that the reasons for this was unclear. The examiner noted that there had not been a sigficant response to bronchodilator in previous studies, which indicated that the Veteran's primary spirometric defect was airway obstruction due to COPD. The January 2013 VA examiner opined that the Veteran had a single small calcified plaque of questionable etiology that "would not be expected to produce any clinical or pulmonary function impairment. Thus, none of the patient's symptoms of dyspnea or pulmonary function abnormalities can be ascribed to this pleural plaque. This patient has numerous other reasons for having dyspnea. These include significant underlying COPD, significant underlying coronary artery disease and significant underlying debility and deconditioning." The examiner further opined that the pleural plaque "would not likely effect the patient's FVC at all and, in fact, it has not and will not. ... This is because this single little plaque is causing none of his respiratory symptoms and none of his functional impairment. These test results on the this patient are entirely due to non-service connected diseases which I have just mentioned are COPD, coronary artery disease, debility and deconditioning." The Board finds the January 2013 VA medical opinion especially probative because the examiner reviewed the claims file, discussed the Veteran's pertinent medical history, and provided an extremely detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a medical examiner must support his conclusion with an analysis that is adequate for the Board to consider and weigh against contrary opinions). The examiner's opinion is also consistent with the other evidence of record. Notably, a private May 2010 CT scan showed relatively severe emphysematous changes diffusely in both lungs, but only mild pleural calcification. Although he did not provide a rationale, the July 2012 VA examiner noted that the Veteran's asthma and COPD were predominantly responsible for the limitation in pulmonary function. A private April 2013 CT scan showed that emphysema was most pronounced within the upper lobes and "questionable subtle minimal interstitial disease" in the periphery of the lower lungs. Finally, the board notes that the examiner's opinion is unequivocal. He repeatedly and emphatically opines that the Veteran's service-connected pleural plaques are not responsible for his pulmonary symptoms and do not cause functional impairment. For these reasons, the Board finds the January 2013 VA examiner's opinion especially probative. The Board acknowledges that a private physician, Dr. H.S., opined that the Veteran's degree of functional impairment was significantly greater than indicated by 10 percent rating under the General Rating Formula for Interstitial Lung Disease and suggested that a cardiopulmonary exercise study be performed. (See December 2009 private treatment record). However, the physician indicated that the Veteran had only "mild" interstitial lung disease with a DLCO of 71 percent and did address the potential effects of the Veteran's nonservice-connected disabilities. In May 2013, the same physician noted that the Veteran had dyspnea out of proportion to the study findings by either PFT or echocardiogram (echo) and recommended a nuclear stress test. In June 2013, on a Disability Benefits Questionnaire (DBQ), the physician diagnosed the Veteran with emphysema and COPD, but did not diagnosis interstitial lung disease (i.e., asbestosis). Although the Board does not dispute that the Veteran has very poor activity tolerance and experiences dyspnea with even minimal exertion, the most probative evidence indicates that his symptoms are not caused by his service-connected pleural plaques. Rather, the evidence indicates that the symptoms are caused by nonservice-connected disability. For these reasons, the Board finds the preponderance of the evidence weighs against finding that a rating in excess of 10 percent is warranted for pleural plaques. In reaching this decision, the Board has considered the Veteran's lay statements. The Veteran is competent to report his observations with regard to the severity of his respiratory disability, including reports of shortness of breath on exertion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also finds his statements to be credible. To the extent he argues his symptomatology is attributable to his service-connected disability, his statements must be weighed against the other evidence of record. Here, the Board finds the January 2013 VA examiner's opinion of greater probative weight than the Veteran's more general lay assertions. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issues in this case, the severity of his pleural plaques and the cause of his respiratory symptoms fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377. The Board has also considered the application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Therefore, initially, 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, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). In this case, the rating criteria reasonably describe the symptomatology related to the Veteran's respiratory disability. He has described symptomatology involving dyspnea and Diagnostic Code 6833 specifically contemplates pulmonary function. As discussed above, although his symptoms are not attributable to his service-connected pleural plaques, the 10 percent rating under Diagnostic Code 6833 contemplates some mild defect. For these reasons, the Board finds that the rating criteria clearly contemplate the Veteran's disability picture. They include symptomatology of the type reported by the Veteran and by medical professionals on clinical evaluation. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met. As the disability picture is contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Finally, the Board has considered the United States Court of Appeals for Veterans Claims' (Court's) decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In Rice, the Court held that a claim for total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Here, however, the Veteran has not claimed nor does the evidence indicate that he is unemployable due to his service-connected pleural plaques. Accordingly, a claim of entitlement to a TDIU is not deemed to be a component of the current appeal. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, a rating in excess of 10 percent for asbestos-related pleural plaques is denied. See 38 U.S.C.A. § 5107(b) . ORDER A rating in excess of 10 percent for asbestos-related pleural plaques is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs