Citation Nr: 1757075 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-13 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial compensable rating for asbestosis. REPRESENTATION Veteran represented by: American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from March 1963 to January 1966, and January 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan. The Veteran testified at a Board hearing in May 2017. A copy of the hearing transcript is associated with the record. FINDING OF FACT Pulmonary function testing (PFT) during the course of the Veteran's appeal reflected DLCO values generally no less than 103 percent, and a FVC no less than 83 percent of predicted value. CONCLUSION OF LAW The criteria for an initial compensable disability rating for asbestosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6833 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified at a Board hearing in May 2017. The Veteran was also provided with a VA examination in September 2012. When the Veteran alleged that the examination was inadequate, he was offered an additional VA examination during his hearing. However, the Veteran stated that he would provide new examination reports prepared by his own private physician in support of his claim. This was provided with a waiver of AOJ consideration. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's asbestosis is rated under Diagnostic Code 6833, which provides a 10 percent evaluation for 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) of 66 to 80 percent predicted. A 30 percent evaluation is warranted for FVC of 65 to 74 percent predicted, or; DLCO of 56 to 65 percent predicted. A 60 percent evaluation is warranted for FVC of 50 to 64 percent predicted, or; DLCO 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 of predicted value, or; DLCO 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. 38 C.F.R. § 4.97. VA regulations provide that post-bronchodilator studies are required when PFTs are performed for disability evaluation purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done. When evaluating based on PFTs, post-bronchodilator results are to be utilized in applying the evaluation criteria in the Rating Schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, the pre-bronchodilator values are to be used for rating purposes. 38 C.F.R. §§ 4.96, 4.97, DC 6833. Based on a June 2009 VA treatment record, an imaging test showed that the Veteran's lungs were symmetrical and normally inflated. There was no infiltrate, pleural effusion or congestion. There was no evidence of pulmonary mass or acute pulmonary abnormality. He underwent a bronchodilator study in September 2012. The results of that test showed that his forced vital capacity (FVC) was 87 percent, his FEV-1 was 101 percent, and his diffusing capacity for carbon monoxide (DLCO) was at 106. The examiner found that the Veteran did not require the use of oral or parenteral corticosteroid, inhaled medication, antibiotics, or oral bronchodilators. There were also no scars or other complications relating to his diagnosis. In conclusion, the examiner found that the Veteran's spirometry results were within normal limits. There was no evidence that the Veteran's asbestosis affected his ability to work. In October 2012, the Veteran was granted service connection for asbestosis at a noncompensable rating. The Veteran then filed a Notice of Disagreement in January 2013 and perfected his appeal. He asserted that the September 2012 examination was inadequate because it was not conducted by a pulmonary specialist and that it failed to include a complete assessment of his respiratory condition. However, his argument was mostly predicated on the fact that a bronchodilator was administered prior to the PFT being conducted, which, as was explained at the Veteran's hearing, is required by VA regulations. After his Board hearing, the Veteran submitted new Pulmonary Function test results dated May 2017. Those results show an FVC of 83 percent and his DLCO is 103 percent. In interpreting the results, the physician found that while FEV1 is mildly impaired, FEV1, FVC, and diffusing capacity are considered normal. After a review of the medical evidence, the Board finds that an initial compensable rating is not warranted for the Veteran's service connected asbestosis, as the Veteran's PFT readings, specifically his FVC and his DLCO predictions are not within the necessary range for a minimum 10 percent rating. His FVC and DLCO readings of record also do not fall within the required range for a higher disability rating of 30 (which requires FVC of 65 to 74 percent and DLCO of 56 to 65 percent) or 60 percent (which requires FVC of 50 to 64 percent and DLCO of 40 to 55 percent). Since the Veteran's medical evidence does not show a FVC of less than 50 percent, a DLCO of less than 40 percent, a maximum exercise capacity of less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, pulmonary hypertension, or that oxygen therapy is required, he is not entitled to a rating of 100 percent. The Board has also considered the Veteran's subjective complaints of impaired breathing and reduced physical activity. The Veteran is competent to report his respiratory symptoms to the extent that its manifestations are perceivable (i.e. coughing, shortness of breath, wheezing) because this requires only personal knowledge as it is observable through the use of human senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify the specific level of impairment from his service connected asbestosis as that is determined through the use of scientific testing. The medical findings (as provided in the examination reports, clinical records, and expert opinions) directly address the criteria under which the Veteran's particular form of asbestosis is evaluated. However, as discussed, the criteria for a compensable rating for asbestosis have not been met, and the Veteran's claim is denied. ORDER An initial compensable rating for asbestosis is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs