Citation Nr: 1753561 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-18 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a compensable rating for a service-connected asbestos related lung disease prior to November 3, 2010. 2. Entitlement to an evaluation in excess of 30 percent disabling for a service-connected asbestos related lung disease from November 3, 2010 to September 17, 2013. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Navy from January 1951 to November 1954. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a May 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In May 2014, the RO issued a rating decision increasing the evaluation of asbestos related lung disease to 100 percent disabling effective September 18, 2013. In July 2017, the Veteran testified at a hearing (video conference) at the RO before the undersigned Veterans Law Judge (VLJ). Hearing transcripts have been associated with the record. 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) (West 2014). FINDINGS OF FACT 1. Prior to November 3, 2010, the Veteran's asbestos related lung disease has not manifested to a compensable degree. 2. From November 3, 2010 to September 17, 2013, the Veteran's asbestos related lung disease is manifested, at worst, by a post-bronchodilator result for forced vital capacity (FVC) of 69 percent. CONCLUSIONS OF LAW 1. Prior to November 3, 2010, the criteria for a compensable rating for service-connected asbestos related lung disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.96, 4.97, Diagnostic Code 6833 (2017). 2. From November 3, 2010 to September 18, 2013, the criteria for an evaluation in excess of 30 percent for service-connected asbestos related lung disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.96, 4.97, Diagnostic Code 6833 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 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 to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any 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). In this case, staged ratings for the disability on appeal have already been assigned. The Board will accordingly discuss the propriety of the ratings assigned at each stage. The Veteran is in receipt of a 100 percent rating for asbestos related lung disease beginning September 18, 2013, 30 percent beginning November 3, 2010, and a noncompensable rating beginning April 5, 2005 under Diagnostic Code (DC) 6833. Under DC 6833, a 10 percent evaluation is assigned where FVC is 75 to 80 percent predicted, or; DLCO (SB) is 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, 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 is warranted for FVC less than 50 percent predicted, or; DLCO (SB) less than 40 percent predicted, or; maximum exercise capacity less than 15 kl/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; where the condition requires outpatient oxygen therapy. 38 C.F.R. § 4.97. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are used for rating purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be performed and explains why. 38 C.F.R. § 4.96(d)(4). When evaluating a disability based upon PFT results, post-bronchodilator results are used unless they are poorer than the pre-bronchodilator results. If so, the pre-bronchodilator results are used. 38 C.F.R. § 4.96(d)(5). On November 3, 2010, the Veteran filed a claim for an increased rating, expressing that his asbestosis had worsened. In a May 2011 rating decision, the RO granted a 30 percent rating effective November 3, 2010. In a rating decision dated May 2014, the RO granted a 100 percent rating, effective September 18, 2013, the date of the VA examination showed the Veteran's disability had worsened to FVC at 45 percent of predicted post-bronchodilator dilation. Therefore, the appeal period before the Board begins on November 3, 2009, one year prior to the date VA received the claim for an increased rating. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). In other words, assignment of an increased rating prior to November 3, 2009 is not possible given the above-cited procedural history. Turning to the evidence, the evidence dated prior to November 3, 2010 does not allow for assignment of a compensable rating for the Veteran's asbestos related lung disease. In this regard, there are no pertinent findings dated between November 3, 2009 and November 3, 2010. The Board notes during an August 2008 private PFT, the Veteran's measurements revealed FVC at 73 percent of predicted pre-bronchial dilation. FEV1 was 81 percent of predicted pre-bronchial dilation. The ratio of FEV1 to FVC was. 111 percent of predicted prebronchial dilation. No tests were performed post-bronchial dilation, nor were DCLO measurements obtained. The Board notes that these tests did not include post-bronchial dilator testing as is typically required under the applicable rating criteria, nor did the physician indicate that post-bronchodilator testing was not required, and as such, the results will not be used to evaluate the Veteran's lung disorder. Accordingly, no tests show the Veteran has met the requirements of a compensable rating prior to November 3, 2010. Beginning November 3, 2010 through September 17, 2013, a 30 percent rating, but no higher, is warranted for asbestos related lung disease. VA Medical Center (VAMC) PFTs in December 2010 revealed results of FVC post-bronchodilator at 69 percent predicted and DLCO at 109 percent predicted. The examiner did not indicate which test result most accurately reflected the Veteran's disability (FVC versus DLCO); accordingly, the Board will resolve this question in the Veteran's favor and employ the FVC results, as it allows for a higher rating under DC 6833. See 38 C.F.R. § 4.96(d)(6). Thus, a 30 percent rating, and no higher, is warranted from this period. Prior to September 18, 2013, a higher, 60 or 100 percent, rating is not warranted, as there are no other FVC or DLCO readings during this period, or any evidence of maximum exercise capacity less than 20 kl/kg/min oxygen consumption with cardiorespiratory limitation, cor pulmonale, pulmonary hypertension, or outpatient oxygen therapy. On September 18, 2013, a VA examination showed the disability has worsened to FVC at 45 percent of predicted post-bronchodilator dilation warranting a higher, 100 percent evaluation as established in the May 2014 rating decision. Accordingly, for reasons outlined above, a 30 percent rating, and no higher, is warranted from November 3, 2010 to September 17, 2013. Prior to that date, a compensable rating is not established. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. ORDER From November 3, 2009 to November 2, 2010, a compensable rating for asbestos related lung disease is denied. From November 3, 2010 to September 17, 2013, a rating in excess of 30 percent for asbestos related lung disease is denied. Beginning September 18, 2013, a rating of 100 percent, maximum schedular disability, for asbestos related lung disease is continued. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs