Citation Nr: 1805449 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 11-02 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an evaluation in excess of 30 percent for pleural plaques consistent with asbestos exposure (respiratory disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1959 to July 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In November 2014, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the 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). FINDING OF FACT The Veteran's pleural plaques consistent with asbestos exposure have not resulted in FVC of 65 percent predicted or less, DLCO (SB) of 56 percent predicted or less, maximum exercise capacity of 15 ml/kg/min oxygen consumption or less with cardiorespiratory limitation, cor pulmonale or pulmonary hypertension, or a requirement of outpatient oxygen therapy. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for service-connected pleural plaques associated with asbestos exposure have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.96, 4.97, Diagnostic Code 6833 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, VA has a duty to notify and assist the claimant in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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). In January 2015, December 2016, and October 2017, the Board remanded the claim for further development and adjudicative action, to include affording the Veteran a VA examination and obtaining the Veteran's outstanding medical treatment records and associating them with the claims file. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The requested development has been completed and associated with the claims file. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Further, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Respiratory disorders are evaluated under Diagnostic Codes 6600 through 6817 and 6822 through 6847. See 38 C.F.R. § 4.96(a). Ratings that fall under these diagnostic codes will not be combined with each other. Id. Rather, a single rating will be assigned under the diagnostic code that reflects the predominant disability, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. Id. Asbestosis is rated under the General Rating Formula for Interstitial Lung Disease (General Formula). See 38 C.F.R. § 4.97, Diagnostic Code 6833. Under the General Formula, a 10 percent disability rating is warranted for an FVC of 75- to 80-percent predicted value, or a DLCO (Single Breath (SB)) of 66- to 80-percent predicted value. Id. A 30 percent disability rating is warranted for an FVC of 65- to 74-percent predicted value, or a DLCO (SB) of 56- to 65-percent predicted value. Id. A 60 percent disability rating is warranted for an FVC of 50- to 64-percent predicted value; a DLCO (SB) of 40- to 55-percent predicted value; or maximum exercise capacity of 15 to 20 ml/kg/min of oxygen consumption with cardiorespiratory limitation. Id. A 100 percent disability rating is warranted for an FVC of less than 50-percent predicted value; DLCO (SB) of less than 40-percent predicted value; maximum exercise capacity of less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation; cor pulmonale or pulmonary hypertension; or requiring outpatient oxygen therapy. Id. VA regulations instruct that post-bronchodilator results be used when considering PFT criteria for ratings under Diagnostic Code 6833. See 38 C.F.R. § 4.96(d)(4). VA treatment records from August 2008 reflect pre-bronchodilator FVC test results of 56 percent of the predicted value and DLCO at 87 percent of the predicted value. Post-bronchodilator FVC was 65 percent of predicted value. The Veteran was afforded a VA examination in January 2009. At that time, the Veteran reported that he was currently having more shortness of breath, coughing, and wheezing. The diagnoses included asbestosis, pulmonary nodules, and obesity. The examiner referred to the November 2008 chest CT and noted a new lingular nodular density adjacent to the Veteran's pleura, which was likely focal scarring. Results showed pre-bronchodilator FVC to be 68 percent of the predicated value and DLCO at 72 percent of the predicted value. Post-bronchodilator testing was not performed. The examiner stated that there was no obstructive lung defect indicated by the FVC ratio and suggested that an additional restrictive lung defect could not be excluded by spirometry alone. VA treatment records from May 2009 do not contain specific FVC or DLCO findings but the examiner opined that the spirometry had decreased from 3.04 L to 2.49 L and suggested a restrictive ventilator defect. Diffusion capacity revealed a mild diffusion block and the presence of mild mismatching of ventilation and perfusion. A July 2017 addendum opinion noted that these were pre-bronchodilator results. The Veteran underwent a private PFT in December 2009. He reported increasing shortness of breath and a non-productive cough. Results showed FVC to be 50 percent of the predicted value, and his DLCO was 76 percent of the predicted value. There was no indication in the report whether the above findings were pre- or post-bronchodilator testing. PFT results from October 2010 revealed pre-bronchodilator FVC of 65 percent of predicted value and DLCO of 103 percent of predicted value. Post-bronchodilator was 75 percent of predicted value. The Veteran was afforded another VA examination in November 2010. The examination noted that the Veteran's pleural plaque was stable in size since May 2009. Pre-bronchodilator FVA was 65 percent of the predicted value and DLCO was 103 percent of predicted value. Post-bronchodilator FVC was 75 percent of predicted value. The examiner stated that there was no obstructive lung defect indicated by the FEV1/FVC ratio, although there was a mild restrictive lung defect. The Veteran's diffusion capacity was within normal limits, and the FVC changed by 15 percent, which the examiner interpreted as a significant response to bronchodilator. Private medical reports from December 2010 reflect pre-bronchodilator FVC of 71 percent of predicted value and DLCO of 67 percent of predicted value. Post-bronchodilator FVC was 68 percent of predicted value. In a March 2015 VA examination, the pre-bronchodilator FVC was 68 percent of predicted value, and DLCO was 78 percent of predicted value. Post-bronchodilator FVC was 49 percent of predicted value. It was noted that there was significant improvement post-bronchodilator. Volumes were noted to have significantly worsened when compared with March 2004 volumes. The examiner found mild obstructive and restrictive lung defects with a mild decrease in diffusing capacity. Finally, the Veteran was afforded a VA examination in July 2017 in accordance with the Board's remand directives; the scheduling of this examination satisfied a Board directive that the examination be given during a summer month. The Veteran was diagnosed with interstitial lung disease, specifically asbestosis. It was also noted that he had asthma which required the daily use of inhaled bronchodilator therapy. Pre-bronchodilator FVC was 48 percent of predicted value, and DLCO was 77 percent of predicted value. Post-bronchodilator FVC was 60 percent of predicted value. The examiner noted that the asbestosis was predominantly responsible only for the Veteran's DLCO percentage. The Veteran's asthma was found to be predominantly responsible for the FVC percentages. Service connection is not in effect for asthma. Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 30 percent for the Veteran's pleural plaques consistent with asbestos exposure for any portion of the rating period on appeal. The medical evidence of record shows that the Veteran's asbestosis has not been manifested by an FVC of 50 to 64 percent of predicted value, DLCO (SB) of 40- to 55-percent predicted value; or maximum exercise capacity of 15 to 20 ml/kg/min of oxygen consumption with cardiorespiratory limitation. In addition, the record shows that the Veteran's asbestosis has not shown a maximum exercise capacity of less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation; cor pulmonale or pulmonary hypertension; or requires outpatient oxygen therapy. The Board notes that the July 2017 VA examiner reported PFT results which may be indicative of a 60 percent rating (pre- and post-bronchodilator FVC was, respectively, 48 and 60 percent of predicted value). However, the examiner indicated that the DLCO test more accurately reflected the Veteran's asbestosis, as the FVC percentages were more related to the Veteran's non-service-connected asthma. At that time, DLCO test was 77 percent of the predictive value, which corresponds to a 10 percent rating. See DC 6833. The Board also notes that the December 2009 private PFT showed the Veteran's FVC to be 50 percent of the predicted value. However, as there was no indication whether the results obtained were pre- or post-bronchodilator, the Board assigns this test little probative value. The Board has considered whether a higher rating is available under any other potentially applicable provision of the rating schedule. However, the Board finds that a higher rating is not warranted based on any other provision of the rating schedule at any time throughout the period of appeal. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 30 percent for the Veteran's service-connected pleural plaques consistent with asbestos exposure, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to a disability rating in excess of 30 percent for pleural plaques consistent with asbestos exposure is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs