Citation Nr: 1804967 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 17-17 010A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable initial rating from July 6, 2010, to January 6, 2016, for service-connected asbestosis. REPRESENTATION Veteran represented by: Jodee Kayton, Attorney ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1953 to May 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the Veteran is service-connected for asbestosis with a 100 percent disability rating effective January 7, 2016. Since the Veteran received a 100 percent disability rating effective January 7, 2016, evidence after that date will not be considered. 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 Veteran's Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) manifested between 40 to 55 percent predicted from July 6, 2010, to January 6, 2016. CONCLUSION OF LAW The criteria for an initial 60 percent rating from July 6, 2010, to January 6, 2016 for asbestosis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6833 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duty to notify was satisfied by a July 2010 letter. 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran has not identified any additional records that should be obtained prior to a Board decision. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran was provided two VA examinations in October 2010 and November 2012. The examinations are adequate for the purposes of the instant claim, as they involved a physical examination of the Veteran and a review of the claims file, and provide discussions of pertinent symptomatology, functional impact, and provided sufficient rationales for all opinions expressed. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Legal Criteria and Analysis Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the 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; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). In a September 2015 rating decision, the Veteran was granted service connection for asbestosis and assigned an initial noncompensable disability evaluation, with an effective date of July 6, 2010. Given the nature of the present claim for an initial compensable rating, the Board has considered all evidence of severity since the effective date for the award of service connection. Asbestosis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6833, according to the General Rating Formula for Interstitial Lung Disease. Accordingly, a 10 percent evaluation is warranted for forced vital capacity (FVC) between 75 and 80 percent predicted, or; DLCO (SB) of 66 to 80 percent predicted. A 30 percent evaluation is warranted for FVC of 64 to 74 percent predicted, or; DLCO (SB) of 56 to 65 percent predicted. A 60 percent evaluation is warranted for FVC of 50 to 64 percent predicted, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 100 percent evaluation is warranted for FVC less than 50 percent predicted, or; DLCO (SB) less than 40 percent predicted, or; maximum exercise capacity less than 15 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. For rating purposes, post-bronchodilator findings are the standard in pulmonary assessment. Post-bronchodilator studies are required, and will be used for rating purposes, unless the post-bronchodilator results were poorer than the pre-bronchodilator results, or when the examiner determines that post-bronchodilator results should not be used and states why. 38 C.F.R. §§ 4.96(d)(4), (5). In addition, "[w]hen there is a disparity between the results of different pulmonary function tests (PFT) . . . 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(6). Here, the Veteran contends that his DLCO (SB) scores entitle him to a compensable initial rating. Specifically, the Veteran states that the DLCO (SB) scores in his October 2010 and November 2012 VA examinations should result in a compensable initial rating. In an October 2010 VA examination, the Veteran's DLCO (SB) was 47 percent predicted. Again, in a November 2012 VA examination, the Veteran's DLCO (SB) was 46 percent predicted. Both scores meet the schedular criteria for a 60 percent disability rating under Diagnostic Code 6833. Based on FVC, the Veteran's results would be noncompensable. As the Board uses the results most favorable to the Veteran, the DLCO (SB) results are controlling in this case. Based upon the above-discussed results, the Board finds that an initial 60 percent disability rating is warranted for the Veteran's asbestosis under Diagnostic Code 6833 from July 6, 2010, to January 6, 2016, as his DLCO (SB) scores fell within 40 to 55 percent predicted range. Additionally, the Board finds that a disability rating in excess of 60 percent is not warranted for the Veteran's asbestosis under Diagnostic Code 6833 from July 6, 2010, to January 6, 2016, as there is no evidence demonstrating that the Veteran had any of the following: FVC 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 (right heart failure) or pulmonary hypertension, or; requires outpatient oxygen therapy. ORDER Entitlement to an initial 60 percent rating from July 6, 2010, to January 6, 2016, for service-connected asbestosis is granted. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs