Citation Nr: 1756715 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 11-11 827A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for asbestos lung disease. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1953 to July 1959 and July 1960 to August 1973, including service in the Republic of Vietnam. This appeal is before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2012 and May 2013, the Board remanded the claim for additional development and adjudicative action. In May 2016, the Board remanded the issue on appeal to the agency of original jurisdiction (AOJ) for additional development. The Board also granted a TDIU from December 3, 2009, to March 27, 2010. A TDIU prior to December 3, 2009, was denied. A search of the online docket database on the website of the Court of Appeals for Veterans Claims (Court or CAVC) shows that the Veteran did not appeal that portion of the Board's decision. The RO implemented the Board's TDIU grant in a June 2016 rating decision. Therefore, the TDIU issue is no longer before the Board. In a September 2017 rating decision, the RO granted service connection for scar, left anterior chest status post lung surgery, and assigned an initial noncompensable disability evaluation effective September 11, 2009. Thus, that matter is not currently before the Board. See 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT For the entire appeal period, the Veteran's asbestos lung disease has not resulted in 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; or FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids CONCLUSION OF LAW The criteria for the assignment of an initial disability rating in excess of 30 percent for asbestos lung disease are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.96, 4.97 DCs 6602-6604, 6833 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist A. Duty to Notify VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran was sent a comprehensive letter in September 2009, which was sent prior to the July 2010 rating decision granting service connection. See 38 U.S.C.A. § 5103. Otherwise, the Veteran's claim arises from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted the claim is substantiated and additional notice is not required. A case-specific notice is not required as to the downstream issues involved in the appeal for a higher initial disability rating, and any other notice defect is deemed not prejudicial. See 38 U.S.C.A. § 5103(a)(1); VAOPGCPREC 6-2014 (VA is authorized to provide notice under § 5103(a) before a claim is filed, including on the standard application forms); see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, the duty is satisfied. B. Duty to Assist VA is required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). VA will help a claimant obtain records relevant to the claim(s) whether or not the records are in Federal custody, and VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). VA has met the duty to assist the Veteran in the development of the claim being decided herein. His service treatment records have been obtained and appear to be complete. Also, all sufficiently identified VA treatment records during the appeal period are of record. The Veteran has not sufficiently identified any other VA medical records he desires to be obtained. Those private records the Veteran has authorized VA to obtain have also been obtained. He did not identify and authorize VA to obtain any other relevant information. Furthermore, VA examinations have been conducted, and they are adequate to inform the Board's judgment on those complex medical matters raised in this appeal. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2014). There is no indication that his symptoms have materially increased in severity since the last VA examination was conducted for the disability in June 2017. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the evidentiary record appears to be complete. C. Stegall Compliance The Board also finds that there was substantial compliance with the May 2016 Board remand directives. First, the Veteran's VA treatment records were obtained and associated with the claims file. Next, as directed, the Veteran underwent a VA examination in June 2017 to evaluate the severity of his condition. This VA examination, when together with an August 2017 addendum, complies with the Board's remand directives to the extent it reports the results of all indicated studies or explains why such studies were not conducted. Finally, the matter was readjudicated in a September 2017 supplemental statement of the case (SSOC), as directed by the Board. Accordingly, there was substantial compliance with the prior Board remand directives, and no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits at this time. II. Analysis The Veteran is seeking an increased rating for asbestos lung disease. The appeal period now before the Board begins on September 11, 2009, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a 30 percent rating throughout the entire appeal period. There was previously some question as to when the appeal period started. In an August 2010 remand, the Board identified the issue as "What evaluation is warranted for asbestos lung disease from September 11, 2009." (Emphasis added.) In a May 2013 remand, the Board recharacterized the issue as "What evaluation is warranted for asbestos lung disease since April 7, 2010." (Emphasis added.) No explanation was given as to why the Board changed the date from September 11, 2009, to April 7, 2010, and none can currently be found. The appeal arises from the original rating decision granting service connection from September 11, 2009. A VA examination was conducted on April 6, 2010, but the 30 percent rating was made effective from September 11, 2009. Therefore, the Board will assume that the May 2013 remand was a typographical error and will consider the appeal since September 11, 2009. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 (2017). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's disability has been assigned a disability rating under Diagnostic Code (DC) 6833 of 38 C.F.R. § 4.97. The rating schedule directs the disability to be rated based on the General Rating Formula for Interstitial Lung Disease, which is set forth as follows: General Rating Formula for Interstitial Lung Disease (diagnostic codes 6825 through 6833): Forced Vital Capacity (FVC) less than 50-percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (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 or pulmonary hypertension, or; requires outpatient oxygen therapy 100 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 60 FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted 30 FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66- to 80-percent predicted 10 Also relevant are DCs 6602 concerning bronchial asthma and 6603 concerning emphysema, and 6604 concerning chronic obstructive pulmonary disease (COPD) are identical 6602 Asthma, bronchial: FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications 100 FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids 60 FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication 30 FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy 10 Note: In the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record. The rating schedule under DCs 6603 (emphysema, pulmonary) and 6604 (COPD) are identical: FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent 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; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 100 FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit) 60 FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted 30 FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted 10 Special provisions apply to these diagnostic codes. Pulmonary function tests (PFT's) are required to evaluate these conditions except: (i) When the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less. If a maximum exercise capacity test is not of record, evaluate based on alternative criteria; (ii) When pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed; (iii) When there have been one or more episodes of acute respiratory failure; or (iv) When outpatient oxygen therapy is required. 38 C.F.R. § 4.96(d)(1). If the DLCO (SB) test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). When the PFT's are not consistent with clinical findings, evaluate based on the PFT's unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. 38 C.F.R. § 4.96(d)(3). Post-bronchodilator studies are required when PFT's 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 studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). When evaluating based on PFT's, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different PFT's (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). If the FEV-1 and the FVC are both greater than 100 percent, do not assign a compensable evaluation based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96(d)(7). B. Discussion In this case, a higher rating is denied as the evidence does not show a higher level disability picture under any of the alternative diagnostic codes. Under the current DC 6833, the evidence shows that PFT results did not indicate 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. On VA examination in April 2010, the FVC was 94 percent predicted. The DLCO (SB) was 74 percent. On private evaluation in June 2012, the FVC was 74 percent predicted (DLCO (SB) results were not given). On VA examination in October 2015, FVC was 103 percent predicted and DLCO (SB) was 92 percent predicted. On VA examination in June 2017, FVC was 74 percent predicted (DLCO (SB) was not conducted because, according to the VA examiner, this was not indicated for the Veteran's condition). Because these results did not more nearly approximate FVC of 50- to 64-percent predicted, or; DLCO (SB) of 40- to 55-percent predicted, they do not support assignment of a higher rating. His maximum exercise capacity was not tested. Therefore, the evaluation is to be based on alternative criteria. See 38 C.F.R. § 4.96(c)(1)(i). Apart from the diagnosis of asbestos lung disease, the medical records also reflect other diagnoses consisting of asthma (see, e.g., April 2015 VA primary care and April 2010 VA examination); emphysema (June 2017 VA examination); and COPD (October 2015 VA examination and June 2017 VA examination). The October 2015 and June 2017 VA examinations show that the symptoms overlap and cannot be separated. The June 2017 VA examiner explained that it would be speculation to state which is predominantly responsible for his limited pulmonary function. The Board cannot, therefore, separate the symptomatology of each disease. See Mittleider v. West, 11 Vet. App. 181 (1998). Rather, the Board has considered the potential applicability of the respective diagnostic codes for these three other diseases. See Urban v. Shulkin, No. 15-3744, 2017 U.S. App. Vet. Claims LEXIS 1312, at *11 (Vet. App. Sep. 18, 2017). Under DC 6602, regarding asthma, the evidence shows that the disability does not involve FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. His FEV-1 was 82 percent in April 2010; 83 percent in June 2012; 90 percent in October 2015; and 70 percent in June 2017. Likewise, his FEV-1/FVC was 68 percent predicted (pre-bronchodilator) in April 2010; 110 percent predicted in June 2012; 68 percent predicted in October 2015; and 93 percent in June 2017. These results are above the FEV-1 and FEV-1/FVC values needed under DC 6602 for a higher rating. He did not require at least monthly visits to a physician. His private and VA medical records show visits every six months. As indicated most recently by the June 2017 VA examiner, he did not undergo intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Thus, these criteria under DC 6602 are not met. Under DC 6603 (emphysema) and 6604 (COPD), the rating criteria at the next higher-level for FEV-1, FEV-1/FVC, and maximum oxygen consumption are identical to those set forth in DCs 6833 or 6802 at the next higher disability level. As shown, these values are not more nearly approximated. In short, the schedular criteria for a higher rating were not shown regardless of the diagnostic code considered. Accordingly, a higher schedular rating is not warranted. To conclude, the Board finds that the Veteran's disability picture and symptomatology, taken as a whole and in combination with the subjective and objective evidence, has not more nearly approximated the criteria for a 30 rating at any time during the appeal period. See 38 C.F.R. § 4.7. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appeal is, therefore, denied. ORDER An initial disability rating in excess of 30 percent for asbestos lung disease is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs