Citation Nr: 18144698 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 15-05 521 DATE: October 25, 2018 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure is denied. Entitlement to a compensable rating for pleural plaques due to asbestos exposure is denied. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence is against a finding that the Veteran’s COPD, to include as due to asbestos exposure, is related to active duty, to include as secondary to his service connected asbestos exposure. 2. The Veteran’s service-connected pleural plaques is not productive of a forced vital capacity (FVC) of 75 to 80 percent of predicted; or a diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO/SB) of 66 to 80 percent of predicted. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310, 3.311. 2. The criteria for an initial compensable rating for pleural plaques have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.97, DC 6833. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to December 1971. 1. Entitlement to service connection for COPD, to include as secondary to service-connected asbestos exposure. The Veteran contends that his COPD was caused by his military service, to include as due to exposure to asbestos. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of COPD, and although exposure to asbestos is conceded, the preponderance of the evidence weighs against finding that the Veteran’s COPD began during service or is otherwise related to an in-service injury, event, or disease, including exposure to asbestos. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records show the Veteran was not diagnosed with COPD until October 2010, over three decades after his separation from service. Service treatment records only document the Veteran sought treatment for a sore throat, nasal congestion, and a productive cough that was treated a common cold. There is no evidence of complaints, treatment or diagnoses of any breathing complaints in service. The Veteran’s November 1971 separation examination found the Veteran’s lungs to be normal and his chest X-ray was within normal limits. Service connection is not warranted on a direct basis. However, it is the Veteran’s contention is that his COPD was caused by exposure to asbestos while on board navy ships while in service. The Veteran was given a VA examination in October 2013, the VA examiner opined that the Veteran’s COPD is not as least as likely as related to asbestos exposure. The rationale was that COPD is an obstructive type airway disorder and asbestos exposure results in a restrictive type of airway disorder. The examiner also reported the Veteran had a history of nicotine use, although he had quit ten years prior. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his COPD is related to his asbestos exposure, as he testified to at his May 2014 DRO hearing, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires in depth knowledge of the body’s physiology and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the October 2013 VA medical opinion. The preponderance of the evidence demonstrates that the Veteran is not entitled to service connection for COPD, to include secondary to asbestos exposure. 38 U.S.C § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application. 2. Entitlement to a compensable rating for pleural plaques due to asbestos exposure The Veteran was granted service connection for his pleural plaques disability due to exposure to asbestos during service in a November 2013 rating decision and assigned a noncompensable rating. The Veteran contends that his service-connected pleural plaques should receive a compensable rating. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s disability of pleural plaques due to asbestos exposure falls under C.F.R. § 4.97, Diagnostic Code 6833 - asbestosis. Under Diagnostic Code 6833, asbestosis is to be rated under the General Rating Formula for Interstitial Lung Disease. A 10 percent evaluation is warranted for FVC of 75 to 80 percent predicted, or; DLCO (SB) of 66 to 80 percent predicted. A 30 percent evaluation is warranted for forced vital capacity (FVC) of 65 to 74 percent predicted, or; diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) of 56 to 65 percent predicted. Turning to the evidence, the Veteran was given a VA examination in October 2013 where he was diagnosed with pleural plaques from an October 2010 chest CT. During the VA examination, the Veteran was given a pulmonary function test (PFT) that resulted in FVC of 73 percent and a DLCO of 98 percent. The examiner opined that the DCLO test result of 98 percent most accurately represented the Veteran’s level of disability. The Veteran was given a VA examination in January 2015. The examination consisted of a medical record review. The examiner used the same October 2013 PFT test results and determined that FEV-1/FVC predicted of 73 percent most accurately reflected the Veteran’s level of disability. However, the examiner then opined that the PFT results were reflective of the Veteran’s chronic obstructive pulmonary disease COPD and that his pleural plaques have no impact on his respiratory function. The Veteran was given a VA examination in May 2016. The examination also consisted of a medical record review. The examiner referenced PFTs from December 2015 that resulted in FEV-1 prebronchodilator of 74 percent and postbronchodilator of 81 percent, FEV-1/FVC prebronchodilator of 74 percent a postbronchodilator of 55 percent, and a DLCO of 106 percent. The examiner determined that that FEV-1 predicted of 67 percent most accurately reflected the Veteran’s level of disability. However, the examiner then opined that the Veteran’s COPD was predominantly responsible for the limitation in pulmonary function, and asbestos related pleural plaques have no impact on the Veteran’s respiratory function. Upon a review of the evidence, the Board finds that the Veteran’s service-connected pleural plaques disability does not warrant a compensable rating. Although PFTs do manifest results that fall within the criteria for a higher rating, multiple VA examiners have opined that the PFT results are reflective of the Veteran’s non-service connected COPD and that his pleural plaques have no impact on his respiratory function. The Board acknowledges the Veteran’s testimony during his May 2014 DRO hearing that his medical records show that his PFT results meet the compensable criteria. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 465. He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him or his medical records during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran’s subjective observations. In summary, the preponderance of the evidence is against the claim for a compensable rating for service-connected pleural plaques due to asbestos exposure. 38 U.S.C. § 5107(b). Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Perkins, Michael