Citation Nr: 18143129 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 15-18 867 DATE: October 18, 2018 ORDER A higher initial rating of 30 percent is granted for service-connected asbestosis. FINDING OF FACT The Veteran’s service-connected asbestosis has manifested a Forced Vital Capacity between 65 and 74 percent predicted and a normal DLCO (SB). CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for a 30 percent initial rating for his service-connected asbestosis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.31, 4.96, 4.97 Diagnostic Code 6833 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to February 1974. This matter is on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA). After it last was adjudicated in April 2015, additional pertinent evidence became available. This evidence is reviewed initially by the Board of Veterans’ Appeals (Board) herein. 38 C.F.R. § 20.1304(c) (allowed when the right to have the agency of original jurisdiction do so is waived, as here by the Veteran’s representative); 38 U.S.C. § 7105(e)(1) (automatic waiver when the substantive appeal was received on or after February 2, 2013, and there is no written request to the contrary). In April 2018, the Veteran and his spouse P.W. testified at a hearing before the undersigned. The Veteran wished to proceed with the hearing despite the absence of his attorney. Preliminary Matters VA has a duty to notify a claimant seeking VA benefits. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. Notice must be provided prior to initial adjudication of the evidence necessary to substantiate the benefit(s) sought, that VA will seek to obtain, and that the claimant should submit. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice of how ratings and effective dates are assigned also must be provided. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist a claimant seeking VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes, as suggested by the duty to notify, aiding the claimant in the procurement of relevant records whether they are in government custody or the custody of a private entity. 38 U.S.C. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). A VA medical examination also must be provided and/or a VA medical opinion procured when necessary for adjudication. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Full notification was provided to the Veteran in a February 2013 letter, before the April 2013 rating decision. Post-service private treatment records and Social Security Administration (SSA) records are available. There is no indication of any post-service VA treatment records. In March 2013, the Veteran underwent a relevant VA medical examination. An addendum opinion was rendered in April 2013. Neither the Veteran nor his representative has raised any duty to notify or assist deficiencies. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (the Board is not required to address procedural arguments that are not raised); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist); Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (concerning the duty to notify). Lastly, a higher initial rating was explained at the Veteran’s hearing. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The submission of outstanding evidence was not suggested, however, as none was identified. Id. Higher Initial Rating Ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A rating is assigned under the Rating Schedule by comparing the extent to which a claimant’s disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the criteria for the disability. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The disability’s history and all other relevant evidence is to be considered. 38 C.F.R. §§ 4.1, 4.6. Examinations are interpreted and if necessary reconciled to form a consistent disability picture. 38 C.F.R. § 4.2. If two ratings are potentially applicable, the higher rating is assigned if the disability more nearly approximates the criteria required for it. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability, or any other point, is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Different ratings may be assigned for different periods of time for the same disability, a practice known as staging the rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994). If a disability has worsened, consideration therefore must be given to when the worsening occurred. Only the most relevant evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Accordingly, the discussion below is limited to this evidence as well as that required to address any arguments raised by the Veteran or the record. Scott, 789 F.3d at 1375; Robinson v. Peake, 21 Vet. App. 545 (2008). Service-Connected Asbestosis 38 C.F.R. § 4.97 concerns disabilities of the respiratory system. Diagnostic Code 6833 thereunder is for asbestosis. It calls for rating pursuant to the General Rating Formula for Interstitial Lung Disease. A 10 percent rating is assigned under that formula when the forced vital capacity (FVC) is 75 to 80 percent predicted or the diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) is 66 to 80-percent predicted. A 30 percent rating requires a FVC of 65 to 74 percent predicted or a DLCO (SB) of 56 to 65 percent predicted. A FVC of 50 to 64 percent predicted, a DLCO (SB) of 40 to 55 percent predicted, or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardio respiratory limitation merits a 60 percent rating. A 100 percent rating is reserved for when the FVC is less than 50 percent predicted or the DLCO (SB) is less than 40 percent predicted. A 100 percent rating also may be assigned when maximum exercise capacity is less than 15 ml/kg/min oxygen consumption with cardio respiratory limitation, cor pulmonale or pulmonary hypertension is present, or outpatient oxygen therapy is required. When pulmonary function tests (PFTs) such as the FVC and DLCO (SB) are not consistent with clinical findings, rating is based on them unless the examiner states why they are not a valid indication of respiratory functional impairment. 38 C.F.R. § 4.96(d)(3). Post-bronchodilator PFT results are required except when pre-bronchodilator PFT results are normal or the examiner determines they should not be done and explains why. 38 C.F.R. § 4.96(d)(4). Post-bronchodilator PFT results are used unless they are poorer than pre-bronchodilator PFT results. 38 C.F.R. § 4.96(d)(5). When the rating would differ based on the PFT considered, the one the examiner states most accurately reflects the level of disability is used. 38 C.F.R. § 4.96(d)(6). Here, the Board finds that an increased initial evaluation from a noncompensable level to 30 percent, but no higher, is warranted for the Veteran’s service-connected asbestosis. The evidence reflects his reports of shortness of breath and running out of breath easily/dyspnea preventing him from exerting himself. He also has reported at times of this causing dizziness as well as a cough. His spouse P.W. verified these reports. Importantly, the evidence shows the Veteran has chronic obstructive pulmonary disease (COPD) in addition to asbestosis. The COPD is not service-connected, as it has been deemed attributable to his significant smoking history and post-service work exposures. None of the evidence differentiates the symptoms of his asbestosis from his COPD. There similarly has been no differentiation with respect to his PFT results. Reasonable doubt thus is resolved in the Veteran’s favor such that all symptoms and PFT results are considered as due to his service-connected asbestosis. Mittleider v. West, 11 Vet. App. 181 (1998). Private treatment records include a January 2008 FVC of 60 percent predicted “pre-drug” (with no post-drug or DLCO (SB) result), but this is more than four years prior to the Veteran filing his claim. It therefore is historical information and not taken into account for rating purposes. Per September 2012 private treatment records, the Veteran’s FVC was 67 percent predicted pre-bronchodilator and 63 percent predicted post-bronchodilator. His DLCO (SB) was 92 percent pre-bronchodilator. This was noted to be within normal limits. The examining physician did not state which test most accurately reflects the Veteran’s level of disability. At the March 2013 VA medical examination, his FVC was 73 percent predicted pre-bronchodilator and 71 percent predicted post-bronchodilator. His DLCO (SB) pre-bronchodilator was 92 percent predicted. The examiner stated that the DLCO (SB) most accurately reflects the Veteran’s level of disability. Maximum exercise capacity was not tested. In an April 2013 addendum related to employability, a new examiner indicated that neither the FVC nor another PFT (FEV-1) improved following bronchodilator administration. This was noted to be consistent with asbestosis. “Quite a decline” in respiratory function since the first documented PFTs dated in 1994 additionally was noted. Progressive worsening also was referenced in an October 2013 letter from the Veteran’s private treating physician. January 2017 private treatment records show his FVC was 71 percent predicted pre-bronchodilator and 67 percent post-bronchodilator. His DLCO (SB) was 97 percent pre-bronchodilator, which again was noted to be within normal limits. An April 2018 disability benefits questionnaire, which essentially is an examination from the Veteran’s private treating physician, finally is available. Yet, it is not on point, even though it touches on breathing difficulties, as it concerns a heart disability instead of a respiratory disability. The Veteran’s FVC, in sum, always was poorer post-bronchodilator than pre-bronchodilator. The pre-bronchodilator results accordingly are used herein. They have ranged from a 67 to 73 percent predicted, which corresponds with a 30 percent initial rating. The DLCO (SB) results are all pre-bronchodilator. Two, 92 percent and 97 percent, were characterized as normal. Since the only other result also was 92 percent, it also was normal despite not being characterized as such. Post-bronchodilator DLCO (SB) results thus are not required. The pre-bronchodilator results do not correspond with even the lowest compensable initial rating of 10 percent. As such, the current noncompensable initial rating would be continued based on them. 38 C.F.R. § 4.31 (a 0 percent rating is assignable even when not specifically provided for in a particular Diagnostic Code). The Veteran’s rating differs based on the PFT considered, in other words. While the March 2013 examiner stated that the DLCO (SB) most accurately reflects the Veteran’s level of disability, no supporting explanation was supplied. Little probative weight thus is assigned to this conclusion. The April 2013 addendum to this examination conveys that the FVC accurately reflects the Veteran’s level of disability. Some explanation was supplied, though more would have been desirable, in support of this conclusion. Yet, whether the DLCO (SB) or FVC is most accurate was not addressed. Further, there is no indication in the September 2012 and January 2017 private treatment records on this point. Reasonable doubt, in sum, is resolved in the Veteran’s favor such that his FVC results will be used to assign his disability rating. A 30 percent initial rating is assigned over a noncompensable initial rating, in other words. That a 30 percent initial rating corresponds more closely than a noncompensable rating with the reports of the Veteran and P.W. also is notable. An initial rating higher than 30 percent cannot be assigned because maximum exercise capacity has not been tested and there is no indication of cor pulmonale, pulmonary hypertension, or the requirement of outpatient oxygen therapy. In conclusion, then, the Veteran’s claim is granted in part (to 30 percent) and denied in part (nothing beyond 30 percent). This determination applies to the entire period on appeal. As such, a staged initial rating is not assigned. Further discussion is not necessary because no other issues have been raised by the Veteran, his representative, or the evidence. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the Board is not required to address issues unless they are raised). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Becker, Counsel