Citation Nr: 1803673 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 16-49 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for migraines. 4. Entitlement to service connection for a heart disability. 5. Entitlement to service connection for arthritis. 6. Entitlement to a compensable disability rating for a respiratory disability, to include emphysema, chronic pulmonary disease (COPD), and asbestosis. ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1960 to March 1964. This matter is before the Board of Veterans' Appeal (Board) on appeal from a February 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. This appeal was processed using the Virtual VA/VBMS paperless claim processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic 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) (2012). FINDINGS OF FACT 1. In an August 2005 rating decision, the RO denied service connection for bilateral hearing loss. The Veteran did not appeal that decision and it became final. 2. Evidence added to the record since the August 2005 rating decision is not cumulative or redundant of the evidence of record at the time of the decision, and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. Bilateral hearing loss was not present in service, did not manifest until more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 4. The Veteran does not have a current diagnosis of migraine headaches, or any other chronic headache disability. 5. The Veteran's current heart disability was not present in service, did not manifest within a year of separation from service, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 6. The Veteran does not have a current diagnosis of arthritis. 7. The Veteran's service-connected respiratory disability has, for the entire period covered by this claim, been manifested by a forced expiratory volume (FEV-1) to forced vital capacity (FVC) ratio of 73-74 percent predicted. CONCLUSIONS OF LAW 1. The August 2005 rating decision, which denied a claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). 2. New and material evidence has been received since the August 2005 rating decision denying for entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 4. The criteria for service connection for migraines have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 6. The criteria for service connection for arthritis have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 7. Throughout the period on appeal, the criteria for a 10 percent disability rating for a respiratory disability have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6603 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Veterans Claims Assistance Act of 2000 (VCAA) Neither the Veteran nor his representative has raised any 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). 2. New and Material Evidence Pertinent procedural regulations provide that nothing in 38 U.S.C. § 5103A shall be construed to require VA to reopen a claim that has been disallowed, except when new and material evidence is presented or secured, as described in 38 U.S.C. § 5108. See 38 U.S.C. § 5103A (f) (2012). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108 (2012); Evans v. Brown, 9 Vet. App. 273, 285 (1996). New evidence means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a) (2017). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The United States Court of Appeals for Veterans Claims (Court) has held that new evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156 (a) (2017) to have a finally denied claim reopened under 38 U.S.C. § 5108 (2012). Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Id. The Veteran contends that he has presented new and material evidence to reopen his claim of service connection for bilateral hearing loss. The question for the Board is whether the Veteran has presented new and material to reopen his claim of service connection for bilateral hearing loss. The Board finds that the Veteran has provided the satisfactory evidence to reopen his claim. Here, the claim of entitlement to service connection for bilateral hearing loss was originally denied in an August 2005 rating decision. However, the Veteran did not appeal that decision and it became final. 38 U.S.C. § 7104 (b) (2002); 38 C.F.R. § 20.1100 (2004). The claim was denied because there was no competent evidence that the Veteran's condition was incurred in, due to, or was caused by his military service. Pursuant to the Veteran's claim to reopen service connection, in a February 2016 rating decision, the RO granted the Veteran's application to reopen his claim of service connection for bilateral hearing loss but denied the underlying service connection claim. The Veteran's underlying service connection claim for bilateral hearing loss was denied because the evidence did not show that the Veteran's bilateral hearing loss was incurred or aggravated by his military service, nor did the condition manifest to a compensable degree within one year following discharge from service. Although the RO reopened the claim, RO decisions are not binding on the Board and, consequently, the Board must decide whether new and material evidence has been received to reopen the Veteran's claim. Jackson v. Principe, 265 F.3d 1366 (Fed. Cir. 2001) (holding that Board reopening is unlawful when new and material evidence has not been submitted). As the August 2005 rating decision is the last final disallowance regarding the claim, the Board must review all of the evidence submitted since that time to determine whether the Veteran's claim should be reopened and readjudicated on a de novo basis. The credibility of the new evidence is presumed for the purpose of determining whether the new evidence is material. Justus, 3 Vet. App. at 512-13. The new evidence includes the April 2017 VA hearing examination report. The Board must now determine whether this evidence also qualifies as material, such that it relates to an unestablished fact necessary to substantiate the Veteran's claim. In undertaking this analysis, the Board notes that the evidence of record prior to the August 2005 rating decision did not establish a nexus between the Veteran's bilateral hearing loss and military service. As such the Board will analyze the new information of record for evidence to substantiate whether there is a nexus between the Veteran's bilateral hearing loss and military service. In doing so, the Board finds that the new evidence also qualifies as material, as it raises a reasonable possibility of substantiating the Veteran's claim. 38 C.F.R. § 3.156(a) (2017). The Board notes that the April 2017 VA hearing examination report confirmed the Veteran's diagnosis of bilateral hearing loss of VA purposes. More importantly, the examination report contained a discussion of the Veteran's in-service noise exposure due to his military occupation specialty (MOS) as a boiler technician. The Veteran reported being exposed to the noise from forced draft blowers during his service. The examiner provided that there was a high probability of hazardous noise exposure due to the Veteran's boiler technician position. Thus, the Board finds that aforementioned evidence raises a reasonable possibility of substantiating the Veteran's claim because it establishes a connection between the Veteran's current hearing loss and his military service. As the above reports are presumed credible for the limited purpose of reopening the claim, the Board finds that it qualifies as material. See Justus, 3 Vet. App. at 512-1. Therefore, the Board finds that new and material evidence is of record since the prior final denial of this claim in August 2005. Shade, 24 Vet. App. at 117. The claim of entitlement to service connection for bilateral hearing loss is thus reopened. 3. Service Connection The Veteran seeks service connection for bilateral hearing loss, migraines and a heart disability. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption for certain chronic diseases, to include sensorineural hearing loss and arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." If there is not sufficient evidence that the currently diagnosed chronic disease was chronic in service or within a presumptive period, a veteran may still be entitled to presumptive service connection if continuity of symptomatology is demonstrated. 38 C.F.R. § 3.303 (b); See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). A. Bilateral Hearing Loss As to the first element of service connection, current disability, the record indicates that the Veteran has hearing loss for VA compensation purposes. See April 2017 VA Examination. Therefore, this element is met. As to the second element for direct service connection, in-service incurrence or aggravation of a disease or injury, review of the Veteran's service treatment records revealed that the Veteran had normal hearing at discharge from military service. However, the Veteran contends that he was exposed to hazardous noise during service due to his MOS as a boiler technician. The Board notes that the Veteran is competent to give evidence about what he experienced, and exposure to noise is subject to lay observation. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Moreover, the Board notes that the exposure to hazardous noise is consistent with the Veteran's MOS. Therefore, the Veteran was exposed to loud noise during service, and element (2) is satisfied. With respect to crucial element (3), nexus for direct service connection, the question presented, i.e., the relationship, if any, between the Veteran's current hearing loss and his military service is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The April 2017 examination report provided that it was less likely than not that the Veteran's bilateral hearing loss was caused by, or a result of an event in military service. The examiner provided that Veteran possessed normal hearing at enlistment and separation from service. The examiner also noted that the Veteran presented normal hearing for VA purposes ten years after service in 1975. The examiner provided that, " the only threshold shift seen when comparing the Veteran's enlistment examination exam with the hearing test in 1975 is at 1000 Hz, which is a frequency that is not typically affected by noise exposure. There is no evidence of a significant threshold shift in higher frequencies which are those typically affected by noise exposure." Thus, the examiner opined that since the Veteran had normal hearing for VA purposes ten years after service with no evidence of a significant threshold shift consistent with noise exposure when comparing the Veteran's enlistment exam with his hearing acuity in 1975, there is no causal connection between the Veteran's bilateral hearing loss and military noise exposure. In this case, as to the issue of whether the Veteran's bilateral hearing loss is related to his military service, the Board finds that the April 2017 VA addendum opinion is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file, in consideration of the Veteran's reported history, prior physical evaluation of the Veteran, and pursuant to the Board's remand instructions. Furthermore, the April 2017 examiner provided a complete and thorough rationale in support of his opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Regarding the presumption in favor of chronic diseases and the continuity of symptomatology, the Board notes that the Veteran has been diagnosed with bilateral hearing loss. For VA purposes, diagnosis of bilateral hearing loss is a chronic disease, thus warranting consideration under 38 C.F.R. § 3.309(a). However, in order for the presumption under 38 C.F.R. § 3.309 to apply the disability must manifest to a compensable degree within one year of discharge from service. However, in this case it appears that the earliest the Veteran sought medical treatment related to his hearing was in 2005, when viewing the evidence in the most favorable light to the Veteran. More importantly, the Board notes that ten years after service the Veteran still possessed normal hearing for VA purposes. In any case, the objective medical evidence indicates that the Veteran's hearing loss did not manifest to a compensable degree within one year of discharge from service. Since the Veteran's bilateral hearing loss did not manifest to a compensable degree within one year of discharge from service and there is no evidence of a chronic disability in service, the presumption in favor of chronic diseases is not warranted in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). The Board acknowledges the Veteran's statement concerning his bilateral hearing loss. In this regard, the Veteran is competent to report the symptoms that Veteran experienced and history of treatment. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). However, as a lay person, the Veteran has not been shown to be capable of making medical conclusions, especially as to a complex medical opinion regarding the etiology of bilateral hearing loss. Given his lack of demonstrated medical expertise, the Board finds that the opinion of the April 2017 VA examiner, a medical professional, to be the most probative evidence of record as to the current nature and etiology of his bilateral hearing loss. Although the Veteran has established a current disability and in-service noise exposure, the preponderance of the evidence weighs against finding that the Veteran's bilateral hearing loss is causally related to his service, or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. §5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection or bilateral hearing loss will therefore be denied. B. Migraines The Veteran asserts that he is currently suffers from migraines as a result of his active duty service. When seeking service connection, the threshold requirement is that the Veteran demonstrates a current disability at some point during the pendency of the appeal. In the absence of competent evidence showing a current disability, service-connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Preliminarily, the Board notes that the Veteran's treatment records throughout the period on appeal reflect no definitive diagnosis or treatment of migraines. The Veteran's service treatment records do not contain any notation, treatment, or diagnosis related to migraines. Moreover, the Board notes that the Veteran has not alleged or provided any evidence as to the connection between his claimed migraine condition and his military service. However, the Veteran did provided that his claimed migraines are the result of the pain from his non-service connected arthritis. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. In the absence of proof of present disability there can be no valid claim. Brammer, 3 Vet. App. At 225; see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Thus, in the absence of competent evidence showing a current diagnosis of migraines, it is unnecessary to address the remaining elements of the claim for service connection. See Brammer, 3 Vet. App. at 225. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, given the absence of evidence that there is a current migraine disability, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for migraines is not warranted. C. Heart Disability The Veteran contends that his current heart disability is related to his military service. As to the first element of service connection, current disability, the record indicates that the Veteran has a diagnosis of atrial fibrillation. See January 2016 Private Treatment Records. Therefore, this element is met. Turning to the second element of service connection, in-service incurrence or aggravation of a disease or injury, the Board notes that the preponderance of the evidence is against finding that the Veteran's heart disability was incurred or aggravated during service. The objective medical evidence of record fully supports that conclusion. The review of the Veteran's service treatment records documents no evidence of chronic complaints, treatment or diagnosis related to a heart disability while on active duty. It is important to note that the Veteran's first episode of atrial fibrillation was in September 2009. The Board acknowledges the Veteran's statements regarding his heart disability. All of which the Veteran is competent and credible to report and entitled to a degree of probative weight, however all the Veteran's statements regarding symptomology pertain to the determination of whether a current disability exists. The Board acknowledges that the Veteran has a heart disability and whether or not the Veteran has a current disability is not at issue here, but whether there is a nexus between his heart disability and his military service. The Veteran, however, has not provided details alleging any in-service event or diagnosis that could be related to his heart disability. As discussed above, the service treatment records do not support the Veteran's claim of onset of his disability during service. In fact, the Veteran was not diagnosed until nearly forty-five years after service discharge. The absence of post-service complaints, findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (noting that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Thus, any assertions that he may make as to onset during service with subsequent continuity of are not supported by the objective evidence of record. The objective medical evidence ultimately outweighs the Veteran's lay contentions that his disability is related to service. See Jandreau, 492 F.3d at 1372. (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding of an in-service event, injury or disease, or that the Veteran's heart disability is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. §5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for a heart disability is denied. D. Arthritis The Veteran asserts that he is currently suffers from arthritis as a result of his active duty service. When seeking service connection, the threshold requirement is that the Veteran demonstrates a current disability at some point during the pendency of the appeal. In the absence of competent evidence showing a current disability, service-connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Preliminarily, the Board notes that the Veteran's treatment records throughout the period on appeal reflect no definitive diagnosis or treatment of arthritis. The Veteran's service treatment records do not contain any notation, treatment, or diagnosis related to arthritis. Moreover, the Board notes that the Veteran has not alleged or provided any evidence as to the connection between his claimed arthritis and his military service. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. In the absence of proof of present disability there can be no valid claim. Brammer, 3 Vet. App. At 225; see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Thus, in the absence of competent evidence showing a current diagnosis of arthritis, it is unnecessary to address the remaining elements of the claim for service connection. See Brammer, 3 Vet. App. at 225. The presumption under 38 C.F.R. § 3.309 does not alleviate the requirement for a current disability in a claim for service connection. Moreover, the presumption for chronic conditions, 38 C.F.R. § 3.309, is not applicable to the Veteran because he does not have a current disability. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, given the absence of evidence that there is a current arthritis disability, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for arthritis is not warranted. 4. Increased Rating Claim The Veteran seeks a compensable rating for his service connected respiratory disability, to include emphysema, chronic pulmonary disease (COPD), and asbestosis. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's service connected asbestosis is rated under Diagnostic Code 6833 and has been assigned a noncompensable (0 percent) disability rating. Diagnostic Code 6833 is rated under the General Rating Formula for Interstitial Lung Disease. Under the General Rating Formula for Interstitial Lung Disease, a 10 percent disability rating is warranted for FVC of 75 to 80 percent predicted, or DLCO (SB) of 66 to 80 percent predicted. A 30 percent disability rating is warranted for FVC of 65 to 74 percent predicted, or DLCO (SB) of 56 to 65 percent predicted. A 60 percent disability rating 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 disability rating is warranted for FVC of less than 50 percent predicted, 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 or pulmonary hypertension, or requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6833 (2017). Diagnostic Codes 6603 for emphysema, and 6604 for COPD, are related diagnostic codes to the Veteran's condition as well. Under Diagnostic Codes 6603 and 6604 a 10 percent disability rating is warranted for forced expiratory volume in one second (FEV-1) is 71- to 80-percent predicted; or if the FEV-1 to forced vital capacity (FVC) ratio is 71 to 80 percent; or if diffusion capacity of the lung for carbon monoxide (DLCO) by the single breath method (SB) is 66- to 80-percent predicted. A 30 percent rating contemplates FEV-1 of 56- to 70-percent predicted; or FEV- 1/FVC of 56 to 70 percent; or DLCO (SB) of 56- to 65-percent predicted. A 60 percent rating contemplates 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). A 100 percent rating is warranted for 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. 38 C.F.R. § 4.97, Diagnostic Codes 6603, 6604. The Veteran's submitted private treatment records detailing ongoing treatment for asbestosis, dyspnea, and nocturnal hypoxia. The Veteran complained of dyspnea upon exertion, chest tightness, and shortness of breath. The Veteran denied chest pain, dizziness, syncope, fever, or chills. At a May 2015 VA examination, the Veteran reported shortness of breath with walking any significant distance or slight exertion. The examiner noted that the pulmonary function testing (PFT) accurately reflected the Veteran's pulmonary functioning at that time. The examiner provided that the Veteran's respiratory condition did require the use of an inhaled medication, but not the use of an oral bronchodilators, antibiotics, or outpatient oxygen therapy. The examiner noted pre-bronchodilator PFT results of FVC of 92.3 percent predicted, FEV-1 of 87.5 percent predicted, FEV-1/FVC of 73 percent predicted. The examiner also provided post-bronchodilator PFT results of FVC of 93.9 percent predicted, FEV-1of 90.2 percent predicted, FEV-1/FVC of 74 percent. Moreover, the examiner opined that the FEV-1/FVC measurement was the test result that most accurately reflected the Veteran's level of disability. The examiner also noted that a DLCO was not done as the PFT results were sufficient to evaluate the pulmonary status. The examiner provided that the Veteran's respiratory condition did impact his ability to work due to limitations with walking, climbing stairs, and heavy lifting. The Veteran was scheduled for a VA examination in September 2015 related to his respiratory disability, however the Veteran did not report for the examination. At an April 2017 VA examination, the examiner confirmed the Veteran's diagnoses of emphysema, COPD, and asbestosis. The examiner provided that the Veteran's respiratory condition did require the use of an inhaled medication, but not the use of an oral bronchodilators, antibiotics, or outpatient oxygen therapy. The examiner noted pre-bronchodilator PFT of FVC of 92.3 percent predicted, FEV-1 of 87.5 percent predicted, FEV-1/FVC of 73 percent predicted. The examiner also documented post-bronchodilator PFT results of FVC of 93.9 percent predicted, FEV-1of 90.2 percent predicted, FEV-1/FVC of 74 percent. Moreover, the examiner opined that the FEV-1/FVC measurement was the test result that most accurately reflected the Veteran's level of disability. The examiner noted a mild reduction in diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO). Exercise capacity testing was not performed during the examination. The examiner noted that the Veteran would be limited to light duty work due to his respiratory condition. Upon review of the evidence of record, the Board concludes that, throughout the period on appeal, a compensable disability rating (but no higher) for service-connected asbestosis is warranted. Under Diagnostic Code 6833 a 10 percent rating is warranted for FVC of 75 to 80 percent predicted, or DLCO (SB) of 66 to 80 percent predicted. Throughout the period on appeal, the worst FVC results of record were pre-bronchodilator FVC of 92.3 percent predicted, as noted in the May 2015 and April 2017 VA examinations. Such results do not meet the criteria for the assignment of a 10 percent rating under Diagnostic Code 6833, and therefore also do not meet the criteria for the 30, 60, or 100 percent disability ratings. With respect to DLCO (SB) findings, such were not provided, and it was explained in each case that a DLCO finding was not necessary because the other findings were more pertinent with respect to the severity of the Veteran's respiratory condition. With respect to the alternative criteria for a higher disability rating under the 60 percent and 100 percent disability rating criteria that reference maximum exercise capacity test results, no such results are of record. The Board observes that, in revising the current schedule of ratings for the respiratory system, VA noted that the regulations did not require that a maximum exercise capacity test be conducted in every case. 71 Fed. Reg. 52457-01 (Sept. 6, 2006). Notably, VA stated that the test was not routinely conducted, was not available in some medical facilities and that if no maximum exercise capacity test is of record, the regulation directs that evaluation be based on the alternative criteria (which have been discussed above and further below). See Id. As such, there is no issue with the adequacy of the Veteran's respiratory VA examinations for not conducting a maximum exercise capacity test. Lacking any maximum exercise capacity test results, a 60 or 100 percent disability rating under this alternative criteria is not warranted. With respect to the alternative criteria under the 100 percent disability rating criteria of cor pulmonale, pulmonary hypertension or requires outpatient oxygen therapy, such has not been shown by the evidence of record. Specifically, the VA examination reports noted that the Veteran was not on outpatient oxygen. Moreover, the Veteran does not have cor pulmonale or pulmonary hypertension. As such, a 60 or 100 percent disability rating under these alternative criteria is not warranted. Such findings result in a noncompensable rating for the Veteran's respiratory condition, under Diagnostic Code 6833. In this regard, the Board can consider whether an increased evaluation would be in order under other relevant diagnostic codes. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). As noted above, the VA examiner opined that the FEV-1/FVC measurement was the test result that most accurately reflected the Veteran's level of disability. Accordingly, a disability rating under Diagnostic Code 6603 is more appropriate based on the level of disability and symptomatology exhibited by the Veteran. Butts v. Brown, 5 Vet. App. at 532. During the period on appeal, the Veteran registered a FEV-1/FVC ratio of 73-74 percent in the May 2015 and April 2017 VA examinations. Diagnostic Code 6603 provides for a 10 percent disability rating for a forced expiratory volume in one second (FEV-1) is 71- to 80-percent predicted; or if the FEV-1 to forced vital capacity (FVC) ratio is 71 to 80 percent; or if diffusion capacity of the lung for carbon monoxide (DLCO) by the single breath method (SB) is 66- to 80-percent predicted. As noted above, the Veteran registered a FEV-1/FVC ratio of 74 percent. Such results meet the criteria for the assignment of a 10 percent rating under Diagnostic Code 6603. The Veteran did not have a FEV-1 of 56- to 70-percent predicted; or FEV- 1/FVC of 56 to 70 percent; or DLCO (SB) of 56- to 65-percent predicted, which contemplates a 30 percent rating under Diagnostic Code 6603, therefore a 30 percent rating is not warranted. Such results do not meet the criteria for 60, or 100 percent disability ratings as well. With respect to the DLCO (SB) findings, such were not provided, and it was explained in the May 2015 and April 2017 that a DLCO finding was not necessary because the other findings were more pertinent with respect to the severity of the Veteran's respiratory condition. Throughout the period on appeal, the criteria for a compensable disability rating under Diagnostic Code 6603 have been met and a 10 percent disability rating is granted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6833 (2017). In sum, the Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the current rating. 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 New and material evidence having been received, the Veteran's claim for entitlement to service connection for bilateral hearing loss is reopened, and to that extent only, the appeal is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for migraines is denied. Entitlement to service connection for a heart disability is denied. Entitlement to service connection for arthritis is denied. A disability rating of 10 percent, but no higher for a respiratory disability, to include emphysema, COPD, and asbestosis, is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs