Citation Nr: 1805456 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-10 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD), to include as due to the Veteran's service-connected asbestosis pleural plaques. 2. Entitlement to an initial compensable rating for asbestosis pleural plaques. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION 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). The Veteran served on active duty from January 1959 to September 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Of note, at the time of the February 2014 rating, the Veteran's service-connected lung disability was characterized as "pleural plaques." Although the medical evidence of record indicates that the Veteran does not have asbestosis, the RO has changed the characterization of the disability in question to "asbestosis pleural plaques" and the Board will keep use the characterization above for the sake of continuity but will refer specifically to the Veteran's pleural plaques in the analyses below. The appeal was remanded by the Board in November 2016 for further development. That development has been completed and the appeal is ready for adjudication. Finally, entitlement to a total disability based on individual unemployability (TDIU) is an additional element to be considered of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Review of the evidence does not show unemployability due to pleural plaques for this period, nor does the Veteran contended that it renders him completely unable to work. Thus, further consideration of a TDIU claim is not necessary. FINDINGS OF FACT 1. The Veteran's COPD was incurred in service. 2. The Veteran's pleural plaques are asymptomatic. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD are met. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.300(a), 3.310 (2017). 2. The criteria for a compensable rating for pleural plaques are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1 , 4.3, 4.7, 4.97, DC 6899- 6833 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify was satisfied by a September 2015 correspondence. See 38 U.S.C.A. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA has a duty to assist the Veteran in the development of the claim. The claims file includes service treatment and personnel records, private and VA medical records, and the statements of the Veteran in support of his claim. The Board remanded the issue on appeal in November 2016 in order to obtain a new VA examination. In accordance with the mandates of the remand, the Veteran was afforded a new VA examinations and new a VA medical opinion was provided pursuant to his respiratory claims in December 2016, April 2017 and November 2017. The December 2016 and November 2017 VA examiners considered the Veteran's complaints and provided findings of a thorough examination, and the conclusions of those examiners and the April 2017 medical opinion are based upon a thorough review of the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The development actions requested in the Board's November 2016 remand were fully completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). A review of the claims folder reveals that VA has fulfilled its duty to assist the Veteran. Service Connection The Veteran contends that he has COPD which began in service or, alternatively, is due to his service-connected pleural plaques. 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). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progression by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The Veteran is clearly shown to carry a diagnosis of COPD. Thus a present disability is shown. The question for the Board is whether COPD is related to the Veteran's service or to his pleural plaques. Significantly, under 38 C.F.R. § 3.300 (a), for claims received by VA after June 9, 1998, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products during service. 38 C.F.R. § 3.300 (a) (2017). Thus, evidence demonstrating that the Veteran's COPD is due to in-service smoking does not suffice to show an in-service incurrence of the disability. However, where a disease related to smoking is diagnosed during service, service connection may be established. The Veteran asserts that he experienced symptoms of COPD during service to include shortness of breath and that this demonstrated that he had COPD at that time. Here, the medical evidence is varied as to whether the Veteran's COPD symptoms began in service. In a February 2014 VA examination, the VA examiner found that the Veteran's COPD was less likely than not incurred in or caused by active service, and that chronic obstructive pulmonary disease was almost always due to tobacco. In an October 2014 correspondence from the Veteran's allergist, Dr. B.P., Dr. B.P. states that the Veteran gave a history of shortness of breath on exertion in the 1980s as well as a cough which was documented in his Navy records. Dr. B.P. noted that a March 1981 treatment record reported shortness of breath on severe exertion, in April 1982 he had shortness of breath and a cough on exertion, in April 1985 shortness of breath and a dry cough, and in June 1989 shortness of breath and a cough. It was noted that the Veteran provided a history of over thirty years of smoking, approximately two packs of cigarettes a day. Dr. B.P. stated that it was his opinion that the Veteran had longstanding COPD, beginning in the 1980s, and that his symptoms progressed over the years thereafter. In a December 2016 VA examination finding from Dr. S.K.P., the VA examiner found that there was no indication in the Veteran's service records during the 1980s to suggest the onset of COPD. He wrote that often times COPD was misdiagnosed and noted that there was no inhaler therapy during that time which would suggest COPD. He suggested instead that the Veteran's symptoms appeared in the context of an upper respiratory illness. In an April 2017 medical opinion, Dr. A.G. stated that it was not unreasonable to assume that, after smoking two packs of cigarettes per day for at least 20 years by 1980, the Veteran could have had mild chronic bronchitis in service. The examiner found that the Veteran's COPD at least as likely as not had its clinical onset during service. Further, in a November 2017 VA examination report from Dr. S.P., Dr. S.P. notes that the Veteran was noted to have a chronic morning productive cough dating back to the 1980s at which time the Veteran would have had at least a two pack per day for twenty year smoking history. Dr. S.P. stated that he concurred with Dr. B.P.'s opinion that the Veteran's mild COPD/chronic bronchitis began in the 1980s during active duty service. The examiner stated that the Veteran's COPD had its clinical onset during active duty service in the early 1980's that was likely related to his chronic tobacco abuse for greater than twenty years at that time. The evidence weighs heavily in favor of a finding that any COPD found is due to the Veteran's extensive smoking history. Had a diagnosis of COPD been established only after the Veteran's service, service connection would not be warranted as 38 C.F.R. § 3.300(a) prohibits service connection for diseases attributable to the Veteran's use of tobacco products during service. Here, however, affording the Veteran the benefit of the doubt, the evidence demonstrates that COPD began in service and, as such, service connection is established. Because the Veteran's COPD is found to be service connected on a direct basis, service connection on a secondary basis need not be considered. II. Pleural Plaques The Veteran contends that the noncompensable rating for his pleural plaques fails to recognize the true severity of his symptoms. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's pleural plaques are rated as noncompensably disabling effective January 18, 2013. His disability is rated under the General Rating Formula for Interstitial Lung Disease. 38 C.F.R. § 4.97, DC 6899-6833. Codes ending in "99" are utilized for an analogous rating. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the function affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2017). The General Rating Formula for Interstitial Lung Disease provides that a 10 percent rating is warranted where the Forced Vital Capacity (FVC) is 75 to 80 percent of predicted value or the Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66 to 80 percent of predicted value. A 30 percent rating is warranted if the FVC is 65 to 74 percent of predicted value or the DLCO (SB) is 56 to 65 percent of predicted value. A 60 percent rating is warranted where the FVC is 50 to 64 percent of predicted value; DLCO (SB) is 40 to 55 percent predicted value; or maximum exercise capacity is 15 to 20 ml/kg in oxygen consumption with cardiorespiratory limitation. A 100 percent rating is warranted if the FVC is less than 50 percent of predicted value; DLCO (SB) is less than 40 percent predicted value; maximum exercise capacity is less than 15 ml/kg in oxygen consumption with cardiorespiratory limitation; or cor pulmonale or pulmonary hypertension; or requires oxygen therapy. 38 C.F.R. § 4.97, 6825 to 6833. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are performed for disability evaluation purposes except in instances where the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done. 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. The pre-bronchodilator values are to be used for rating purposes in those instances. 38 C.F.R. § 4.96(d)(4), (5). If the DLCO (SB) test is not of record, the disability may be rated based on alternative criteria as long as the examiner explains why the DLCO (SB) test would not be useful or valid in a particular case. 38 C.F.R. § 4.96 (d)(2) (2017). In this case, a compensable rating is not warranted. As described in greater detail below, while the Veteran is sometimes found to have PFT findings which might have warranted a higher rating, in this case those symptoms are attributed to a different disability. The evidence includes pulmonary function reports dated in June 2013 and August 2014 from Dr. B.P. include FVC of 62 percent and 61 percent respectively. The interpretation found moderate restrictive ventilator defect as indicated of a moderately reduced forced vital capacity. It is noted, however, that Dr. B.P. stated: "the finding of a disproportionately reduced forced expiratory flow during the middle half of exhalation suggested the possibility of a SUPERIMPOSED EARLY OBSTRUCTIVE PULMONARY IMPAIRMENT." (Dr. B.P.'s emphasis). The Veteran was afforded a VA examination in February 2014 in which the examiner found that the obstructive defect seen on PFTs was due to chronic obstructive pulmonary disease, not due to pleural plaques. The examiner explained that pleural plaques do not cause an obstructive defect. The examiner stated that "100% of the obstructive defect is due to chronic obstructive pulmonary disease. The mild restrictive defect is likely not limiting." The Veteran's December 2016 VA examination report includes findings of 66 percent FVC, the VA examiner noted that the Veteran had low lung volume and decreased FEV1 consistent with restrictive lung disease. In an April 2017 VA medical opinion from Dr. A.G., Dr. A.G. noted that the Veteran's spirometry demonstrated moderate airway obstructive ventilary defect and that lung volumes were consistent with mild restrictive disease. Dr. A.G. found that the flow volume loops done by the Veteran's private doctors B.P. and L.A. were characteristic of obstructive airway disease (i.e. COPD) and not asbestosis and that the severity of the Veteran's asbestos-related condition was asymptomatic pleural plaques. The examiner stated that there were no symptoms due to pleural plaques including the Veteran's service connected pleural plaques stating in no uncertain terms "the 'degree of severity' of 'the pleural plaques' is zero. It is an only anatomic finding on imaging...All the Veteran's symptoms are due to COPD; none are due to asbestos plaques." The Veteran's pulmonary function tests include findings that may have allowed for a compensable rating- if it were shown that the limitations were due to service-connected pleural plaques. However, in this case, the evidence clearly demonstrates that the Veteran's limitations are due instead to newly service-connected COPD. This finding is supported by the findings by Dr. B.P. that the Veteran's restrictive defects may be superimposed by COPD, by the February 2014 and April 2017 VA examiners who showed in no uncertain terms that the Veteran's service-connected pleural plaques are wholly asymptomatic. As such, a compensable disability rating for pleural plaques is not warranted. Once service connection is established by the Board, the appeal is returned to the RO for assignment of a disability rating. Thus, while a compensable rating is not warranted for pleural plaques, the same symptoms discussed above will be considered in determining a disability rating for COPD. ORDER Service connection for chronic obstructive pulmonary disorder is granted. An initial compensable rating for asbestosis pleural plaques is denied. ____________________________________________ M.H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs