Citation Nr: 1802003 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-28 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial compensable rating for asbestos-related disease of mild plural thickening. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1954 to October 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2014. A transcript of the hearing is of record. This matter was previously before the Board in January 2015 and April 2016, where it was remanded for additional development. It has since been retuned for further appellate review. 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 evidence is against a finding that the Veteran's reduced pulmonary function and restrictive lung defects are due to service-connected asbestos-related disease of mild plural thickening, but rather unrelated nonservice-connected diaphragm weakness. CONCLUSION OF LAW The criteria for an initial compensable rating for asbestos-related disease of mild plural thickening are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6833 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was afforded a VA respiratory examination in September 2015 in accordance with a January 2015 Board remand. The examiner was instructed to address the following questions: 1) whether the Veteran's pulmonary function test (PFT) findings were due to his service-connected asbestos-related disease of mild pleural thickening or due to a nonservice-connected disability (particularly, diaphragm weakness); 2) if the Veteran's PFT findings were due in part to his mild pleural thickening, to state whether the sole effects of the service-connected disease could be separated out (to include PFT findings), and if so, detail those effects; and 3) state the Veteran's maximum exercise capacity, as well as the degree of any impairment due to the Veteran's service-connected asbestos-related disease of mild pleural thickening. The examiner opined that the Veteran's PFT findings were more due to his elevated right hemidiaphragm, and that any findings associated with his asbestos-related disease were mild. However, no rationale was provided. The examiner also stated that he was unable to separate out the effects of the Veteran's service-connected asbestos-related disease, but noted that a board-certified pulmonologist would be able to do so. As such, the Board remanded the Veteran's claim again in August 2016 for an addendum opinion by a pulmonologist. The Board also noted that the September 2015 examination report was absent the Veteran's PFT results, and ordered that they also be obtained upon remand. The Board finds that there has been substantial compliance with its April 2016 remand instructions. A new respiratory examination was provided in August 2016 by a board-certified pulmonologist. The pulmonologist reviewed the Veteran's previous PFT results and issued a medical opinion describing the nature and severity of the symptoms associated with the Veteran's respiratory disability. As will be discussed in greater detail in the decision below, the examiner determined that the Veteran did not have actual asbestosis or any asbestos-related pleural thickening. While the Veteran was exposed to asbestos in service, his shortness of breath and any reduced PFTs are instead related to a nonservice-connected diaphragm disorder. The Board acknowledges that the Veteran's September 2015 PFT results have still not been associated with the claims file. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). As the August 2016 pulmonologist answered the first prong of the Board's remand instructions by opining that the Veteran's respiratory problems are not at all related to his asbestos exposure in-service, the remaining follow-up requests by the Board and the PFT results necessary to respond to those questions are irrelevant to the fair adjudication of the Veteran's claim. Therefore, no further remand is necessary. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Ratings, Generally 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 contained 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. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Asbestosis is rated under Diagnostic Code 6833, utilizing the General Rating Formula for Interstitial Lung Disease (Diagnostic Codes 6825 through 6833). Under the General Rating Formula, 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. 38 C.F.R. § 4.97. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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, or even the year prior, until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. And this is true irrespective of whether the claim is for a higher initial or established rating. See Fenderson v. West, 12 Vet. App. 119, 127 (1999) (initial rating); Hart v. Mansfield, 21 Vet. App. 505 (2007) (established rating). 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses is to be avoided, as this would constitute pyramiding. See 38 C.F.R. § 4.14. However, this does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Analysis VA has conceded that the Veteran was exposed to asbestos while serving in the United States Navy, and the Veteran filed his initial service connection claim for asbestosis on July 2, 2009. Service connection for asbestos-related mild plural thickening was awarded in the May 2012 rating decision on appeal, with an initial noncompensable evaluation assigned effective July 2, 2009. The Veteran contends that an increased rating is warranted. After review of the extensive medical evidence, however, the Board finds that an initial compensable rating is not warranted for the Veteran's service-connected asbestos-related disease of mild plural thickening. The competent evidence establishes that the Veteran does not experience any reduction in pulmonary function due to actual asbestosis or any asbestos-related mild pleural thickening, but rather, his restrictive lung defects are due to a nonservice-connected diaphragm condition. The majority of the Veteran's medical care and treatment records for the relevant time period have been provided by numerous private primary care providers, with varying opinions as to the diagnosis and/or etiology of the Veteran's respiratory problems provided by both VA and private examiners. A February 2009 private treatment record from Dr. I.S. noted the Veteran complaining of a persistent dry cough. While chest X-rays that month showed no significant parenchymal abnormalities, Dr. I.S. noted that there "may" have been signs of some pleural thickening. The X-ray report also indicated some elevation of the Veteran's right hemidiaphragm. Pulmonary function testing was "consistent with a mild degree of restrictive lung disease." A CT scan was recommended and obtained later that month. In a follow-up visit in March 2009, Dr. I.S. noted that while the Veteran's CT scan obtained the previous month showed no active disease, there were "some scattered signs of plural thickening." Dr. I.S. opined that the Veteran had signs of asbestos-related pleural scarring. An April 2009 pulmonary consultation with Dr. C.M. noted the Veteran's persistent dry cough the previous several months. She also noted that the Veteran had a history of tobacco use but quit 34 years prior. Noting that the February 2009 CT scan only showed some small asbestos-related plaques, and after ruling out the existence of asthma, Dr. C.M. could not find an explanation in the Veteran's clinical history for his reactive airway dysfunction, but noted that it may be related to gastroesophageal reflux disease. In May 2009, Dr. F.J. noted that the Veteran reported right lower lobe scarring in the previous CT scan, which he himself opined may have been related to an old pneumonia. Dr. F.J. did not view this CT scan, however. A March 2010 treatment record from Dr. E.S. notes the Veteran reporting to the emergency room with a five day history of worsening cough productive of yellow septum, shortness of breath, and wheezing. He was diagnosed with sinusitis and bronchitis. A CT scan revealed a right middle lobe atelectasis and elevated right hemidiaphragm. No asbestosis or asbestos-related pleural thickening was noted. An additional emergency room visit the following April 2010 notes the Veteran was treated for an exacerbation of chronic obstructive pulmonary disorder (COPD) and acute bronchitis. A chest X-ray revealed no active disease. A June 2010 treatment record provided by Dr. G.W. notes the Veteran as having a history of asbestosis, COPD, and sinusitis. Dr. G.W.'s concern was that the Veteran's sinuses may have been exacerbating his COPD. A CT scan was reviewed and was noted as "phenomenally better." The Veteran was noted as not being in any respiratory distress and his breathing sounded normal. Finally, a private treatment record dated January 2011 from Dr. J.S. notes the Veteran reporting dyspnea. Physical examination revealed abnormal breathing and a decrease in expiratory force. A CT scan revealed no evidence of respiratory infection. Dr. J.S. diagnosed COPD and a severe elevated right diaphragm. The Veteran was afforded his first VA examination for his asbestosis claim in October 2010. He was noted as not being in any respiratory distress, with clear lungs and no rales, rhonchi, wheezes, restriction of movement of air in both lung fields, and no dullness to percussion. The examiner noted the Veteran's February 2009 CT scan indicating no acute abnormalities other than minimal scarring in the right lower lobe. The examiner stated that there was no evidence to support a diagnosis of pulmonary asbestosis, and that any opinion as to the etiology of any respiratory condition would be resorting to mere speculation. The Veteran reported for a private evaluation and opinion from Dr. S.K. in May 2011 regarding his asserted in-service asbestos exposure. The Veteran reported that he began to suffer from shortness of breath two years prior, and that his primary medical care provider determined that he had pulmonary illness due to asbestos exposure. Dr. S.K. reviewed the Veteran's relevant medical history up until that point, including the February 2009 chest X-ray showing elevation of the right hemidiaphragm, the CT scan that same month showing minimal subpleural scarring in the right lower lobe, and the opinion of Dr. I.S. that the Veteran had signs of asbestos-related pleural scarring with some pleural scattered signs of pleural thickening. Upon physical examination, a diagnostic spirometry revealed a lung age of 80 years, which Dr. S.K. noted was compatible with severe restriction. Based on the Veteran's confirmed exposure to asbestos in service, his breathing restriction, and the February 2009 diagnostic testing indicating pleural thickening, Dr. S.K. diagnosed asbestosis. Another VA examination was afforded to the Veteran in August 2011. The Veteran was noted to be easily winded, with a persistent dry cough, diminished breath sounds and basilar crackles. Diagnostic views of the chest showed no acute disease, but the examiner indicated some bilateral pleural thickening with no distinct plaques. The examiner noted November 2010 PFTs indicating an FVC of 84 percent, which the examiner describes as a moderate restriction. The examiner stated that, while asbestosis could have certainly caused the above findings, and although it would be unusual to develop it from the Veteran's "alongside exposure" alone, no conclusive opinion could be provided as the records from the Veteran's primary care provider and pulmonologist were not available to the examiner. As such, an additional VA examination was provided the following February 2012. The examiner viewed the Veteran's October 2010 chest X-rays and also noted the Veteran's lung fields were clear of acute disease, including pleural disease. Based on review of the Veteran's claims folder and the October 2010 chest X-ray which showed no evidence of asbestosis or asbestos-related pleural disease, the examiner found that an opinion regarding the etiology of any asbestosis was not necessary and was not provided. As the previous examination were determined by the RO to be insufficient to assign the Veteran a disability rating, an April 2012 follow-up examination was scheduled, this time with a VA pulmonologist. The examiner opined that the Veteran's shortness of breath and cough are likely related to restriction due to both alongside asbestos exposure as well as the Veteran's high hemidiaphragm, obstructive sleep apnea, and obesity. The examiner stated that he suspected that the Veteran did not have asbestosis, but just mild pleural thickening, and that "diminished bs on the right, normal dl and along-side asbestos exposure" suggested more of a role of diaphragm weakness. In addition, the examiner further noted that a pulmonary function test that month showing an FVC value of 36 percent, indicated a worsening severe restriction, and that his severe restriction with a paradoxical negative response to a bronchodilator and very low MIPs and MEPs also supported diaphragm weakness over asbestos-related restriction. The Board notes here, by way of history, that the Veteran was subsequently awarded service connection for asbestos-related disease of pleural thickening in the aforementioned May 2012 rating decision. However, as the RO did not have enough information to assign a disability percentage that reflected the Veteran's impairment, the assignment of a possible compensable evaluation was deferred pending a new medical opinion regarding which of the Veteran's symptoms were related to his mild pleural thickening versus which were due to his nonservice-connected respiratory problems. The Veteran filed a notice of disagreement with the noncompensable rating the following October 2012, resulting in the present appeal for an initial compensable rating. In a VA medical opinion dated June 2013, a VA examiner opined that the Veteran, in actuality, had no disability of pulmonary function impairment due to an asbestos-related lung disease. The examiner explained that a CT scan performed in May 2012 showed no findings of asbestos exposure, including no suspicious appearing pulmonary nodules, pleural plaques, fibrotic change in the lung parenchyma, pleural effusion, or pneumothorax. An additional CT scan performed by a private physician, Dr. M.D., in December 2014 indicted "surprisingly minimal" pleural thickening without heavy calcifications and minimal amounts of scarring in the upper and lower right lobes. Dr. M.D. also noted that the CT scan did not address the postulated idea of diaphragm weakness. Finding that the evidence of record up to this point was unclear as to whether the Veteran's respiratory problems were due to his service-connected asbestos-related mild pleural thickening or his nonservice-connected disabilities, the Board remanded the Veteran's claim in February 2015 for another VA examination, which was provided the following September. The examiner noted that there was mild dependent atelactatic change at the lung base bilaterally. There were not CT findings of asbestos exposure, including pulmonary nodules, pleural plaques, fibrotic change in the lung parenchyma, pleural effusion, or evidence of pneumothorax. PFT testing was performed and the examiner opined that the PFT findings were more due to the Veteran's elevated right hemidiaphragm since any of the findings associated with pleural plaques were mild in nature. When asked which condition impacts the Veteran's breathing more, the examiner opined that his maximum exercise capacity and the degree of impairment due to his asbestos-related mild pleural thickening impacts his breathing less than the elevated hemidiaphragm. As the September 2015 still failed to address whether the effects of the veteran's service-connected mild pleural thickening could be separated out from the effects of his nonservice-connected respiratory problems, the Board remanded the Veteran's claim once more in April 2016 to obtain a VA examination from a board-certified pulmonologist who could make such a determination. The examination and lengthy opinion were provided in August and September 2016, respectively. Upon physical examination, the board-certified pulmonologist, Dr. M.M., noted that the Veteran had orthopnea (shortness of breath that occurs when lying flat), and that his lungs were clear to auscultation and percussion bilaterally but diminished and dull at the bases. X-rays of the chest revealed no asbestosis or related plaques, with minimal subpleural scarring. PFTs revealed moderate restriction with no significant bronchodilator response. Low MIPs and MEPs were noted as consistent with diaphragm/respiratory muscle weakness, with no significant change since the previous September 2015 examination. Dr. M.M. opined, after reviewing the Veteran's 2009 and 2012 CT scans with a board-certified chest radiologist, that although there was no question that the Veteran was exposed to asbestos there was no bonafide evidence of asbestosis or related pleural thickening. He explained that, while the Veteran's "along-side" exposure aboard ship may have been substantial, such exposure typically does not result in clinically significant impairments in terms of symptoms, pulmonary physiologic derangements, and radiologic manifestation. Further, mild pleural thickening, even if present, could not give rise to the moderate restrictive impairment confirmed on multiple sets of PFTs, rather, mild pleural thickening typically gives rise to no physiological impairments. While also acknowledging that the Veteran's maximum exercise capacity has never been measured, this test would have no differential value in distinguishing the actual causes of the Veteran's restriction. Dr. M.M. pointed out that the Veteran has many other causes for his restrictions unrelated to asbestos - specifically his weakness of the diaphragm and respiratory muscles - with the important clues to this entity being his profound orthopnea and a high hemidiaphragm on multiple chest X-rays. As to the cause of the Veteran's diaphragm weakness, the Dr. M.M. explained that asbestos is not one of them. Rather, some cases are related to injury to the ipsilateral nerve or systemic disorders. Since the Veteran's diaphragm is not paralyzed, the examiner opined that its weakness can be explained by the high right hemidiaphragm seen on many diagnostic tests, the restriction seen in PFTs, his profound orthopnea, and his low MIPs and MEPs noted in 2012 and confirmed in 2016. He also noted that many chronic diaphragm disorders commonly result in minimal findings on chest CT scans, usually termed as atelectasis and subpleural scarring, exactly as noted in the report of the Veteran's 2009 CT scan. In sum, while the Veteran had definite exposure to asbestos on one hand and real shortness of breath and pulmonary function restrictions on the other, Dr. M.M. opined that these phenomena are completely unrelated in the Veteran's case, and that he has a significant unrelated diaphragm disorder that accounts for the restriction, orthopnea, and low MIPs and MEPs, rather than asbestosis or asbestos-related pleural thickening. The Board notes that the examiner also cited several medical treatises in his rationale. Based on the foregoing, the weight of the probative, competent evidence is against a finding that the Veteran has asbestos-related pleural thickening, but rather, that the Veteran's symptoms are related to a nonservice-connected diaphragm condition. The Board acknowledges the Veteran's statements that his service-connected asbestos related disease of mild plural thickening results in severe effects to his breathing and activities. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Board finds that his lay statements are outweighed by the competent medical evidence against the claim - particularly the September 2016 medical opinion rendered by the VA pulmonologist. The Board also acknowledges the Veteran's statement in his October 2014 hearing testimony that he believes his diaphragm disability may be secondary to his asbestos exposure. However, the Veteran is not shown to possess any medical expertise; thus, his opinion as to the etiology of his respiratory problems is not competent medical evidence. As Dr. M.M. opined, while there are many possible causes of diaphragm weakness, asbestos exposure is not one of them. To the extent there are medical opinions in the record in support of the Veteran's claim, the Board finds the September 2016 opinion of Dr. M.M., a board-certified pulmonologist, to be of higher probative value. Greater weight may be placed on one physician's opinion than another's depending on factors such as reasoning employed by the physicians and whether or not (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The United States Court of Appeals for Veterans Claims has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez, 22 Vet. App. at 295; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The September 2016 pulmonology opinion considered the Veteran's relevant medical history, provided a sufficiently detailed description of the disorder, and provided analysis to support his opinions concerning the etiology of the Veteran's respiratory problems. The Board considered the expertise of all parties submitting statements of record, medical or lay, and has found the pulmonologist the most qualified to make the determinations in this matter. Moreover, the Board notes that Dr. M.M. observed in his September 2016 opinion that his review of the submissions of other physicians' letters in the Veteran's case revealed a "troubling set of problems," in that they portray "a stunning lack of sophisticated pulmonary knowledge and careful analysis." He elaborated that: "These individuals did not review the CT scans themselves, misread or misrepresented the actual radiologic findings in their letters..., missed the high hemidiaphragm findings on chest x-rays, failed to check the patient for orthopnea, never asked for specific diaphragm fluoroscopy or MIP/MEP measurements, and above all seem to be unaware of the striking discrepancy between the marked restriction on PFTs and the absence of radiological findings for asbestosis or asbestos-related pleural thickening on the CT scans. There are repeated distortions of the actual data. For example, the CT scan of 2/27/2009 is correctly read as showing 'minimal scarring in the right lower lobe'. But in the VA statement of the case of 8/12/13 this has somehow been transformed into 'some small asbestos related plaques' and in Dr. [S.A.]'s error-plagued letter of 8/24/2012 into 'pleural thickening and scarring on the chest walls bilaterally.' Dr. [S.K.]'s letter of 2011 demonstrates a remarkable inability to analyze and correctly interpret the data." As such, the Veteran "has been put through years of contentious arguments and counter-arguments, many of which were propelled by inadequate and careless opinions by previous physicians asked to analyze this case." In sum, although the Veteran was exposed to asbestos in service and has demonstrated respiratory restrictions, the medical evidence of record was unclear as to a conclusive etiology of his respiratory problems prior to the opinion of the board-certified pulmonologist in August and September 2016 that attributed his results to a nonservice-connected diaphragm disability. The Board has considered whether there is any other schedular basis for granting a compensable rating, but has found none. Therefore, while the Board sympathizes with the Veteran, the preponderance of the evidence is unfortunately against a finding that his disability more nearly approximates the criteria for a compensable rating, and a higher rating is not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.97. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an initial compensable rating for asbestos-related disease of mild plural thickening is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs