Citation Nr: 18144524
Decision Date: 10/24/18	Archive Date: 10/24/18

DOCKET NO. 16-32 096
DATE:	October 24, 2018
ORDER
An initial compensable rating for asbestosis is denied.
FINDING OF FACT
Asbestosis has not been manifested by forced vital capacity (FVC), or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO(SB)), of 80 percent predicted or less.
CONCLUSION OF LAW
The criteria for an initial compensable rating for asbestosis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.96, 4.97, Diagnostic Code 6833.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service in the U.S. Navy from September 1966 to June 1970.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision which granted service connection for asbestosis and assigned a zero percent rating.
A compensable rating for asbestosis
Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.
Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
The Veteran is currently assigned a zero percent (noncompensable) rating for his service-connected asbestosis under 38 C.F.R. § 4.97, Diagnostic Code 6833.  A higher 10 percent rating under that code requires pulmonary function tests (PFTs) showing either FVC or DLCO(SB) of no more than 80 percent predicted.
The evidence includes pulmonary function tests from July 2013 and November 2016.  The July 2013 test documented FVC at 127 percent predicted and diffusion capacity as “normal.”  The November 2016 test documented FVC at 133 percent predicted and DLCO(SB) at 155 percent predicted.  In other words, the results of the PFTs do not meet the criteria for a 10 percent rating.
Notably, the Veteran reported shortness of breath with minimal exertion and chronic coughing even at rest.  The VA examiner noted that the symptoms he described would not be expected with the above PFT results.  Under 38 C.F.R. § 4.96(d)(3), if PFTs are not consistent with clinical findings, the disability should be evaluated based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment.  Here, the examiner has not specified a reason why the PFTs would be invalid, and therefore the Board will rely on them in assessing the Veteran’s level of impairment.
Because the Veteran’s PFT results do not meet the criteria for a 10 percent rating under Diagnostic Code 6833, the zero percent rating is continued.  See 38 C.F.R. § 4.31 (where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation have not been met).
 
M. TENNER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Shamil Patel, Counsel