Citation Nr: 1752959 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 16-29 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a disability rating in excess of 10 percent for service-connected asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Parke, Associate Counsel INTRODUCTION The Veteran had active duty from January 1955 to June 1958. This appeal is before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The objective pulmonary function tests (PFTs) of record show that the Veteran has a Forced Vital Capacity (FVC) level of, at worst, 62.5% predicted value. CONCLUSION OF LAW The criteria for a disability rating of 60 percent, but no higher, for asbestosis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.21, 4.97, Diagnostic Code (DC) 6833 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns Diagnostic Codes (DCs) to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. There is a general rule against the "pyramiding" of benefits. See 38 C.F.R. § 4.14; see also Brady v. Brown, 4 Vet. App. 203, 206 (1993). However, a Veteran is entitled to separate disability ratings for different manifestations of the same disability when the symptomatology of one manifestation is not duplicative or overlapping of the symptomatology of the other manifestations. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If there is disagreement with the initial rating assigned following a grant of service connection (i.e., a higher initial rating claim), separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Asbestosis The Veteran's asbestosis has been rated as 10 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6833. The General Rating Formula for Interstitial Lung Disease (DCs 6825 through 6833) provides that: Forced Vital Capacity (FVC) of 75- to 80-percent predicted value, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66- to 80-percent predicted, is rated 10 percent disabling. FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted, is rated 30 percent disabling. 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 is rated 60 percent disabling. FVC less than 50 percent of predicted value, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale (right heart failure) or pulmonary hypertension, or; requires outpatient oxygen therapy, is rated 100 percent disabling. Therefore, in order to get a higher rating the Veteran must show he meets these requirements based on the objective results of a PFT. The Veteran was afforded a VA medical examination in June 2014. The examiner relied upon results of an April 2014 PFT. The Veteran's FVC levels were 85.6% predicted value. There were no post-bronchodilator results because the Veteran's pre-bronchodilator results were normal. The Veteran's DLCO levels were 72.1% predicted value. The Veteran did not use any outpatient oxygen therapy. The Veteran was afforded a PFT in May 2015. His FVC levels were 62.5% predicted value. His DLCO levels were 66% predicted value. He was afforded another VA medical examination in February 2016. The Veteran's post-bronchodilator results showed his FVC levels were 85% predicted value. His DLCO levels were 72% predicted value. The Veteran did not use any outpatient oxygen therapy. The Veteran's VA treatment records do not show any additional PFTs. They did not show any outpatient oxygen therapy. They do not show maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, cor pulmonale or pulmonary hypertension. While the Veteran's symptoms have varied, at its worst, his asbestosis manifested as FVC levels 62.5% predicted value. Therefore, the Veteran is entitled to a 60 percent disability rating. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. However, the Veteran is not entitled to a disability rating in excess of 60 percent, as his FVC levels have not been lower than 50 percent of predicted value, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale (right heart failure) or pulmonary hypertension, or; requires outpatient oxygen therapy. ORDER A disability rating of 60 percent, but no higher, for asbestosis is granted. ______________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs