Citation Nr: 18147551 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 97-04 843 DATE: November 6, 2018 ORDER The claim of entitlement to a higher initial rating for asbestosis, rated as 10 percent disabling from October 16, 1995, to January 23, 2006, is denied. The claim of entitlement to a higher initial rating for asbestosis, rated as 30 percent disabling from January 24, 2006, to July 15, 2008, is denied. The claim of entitlement to a higher initial rating for asbestosis, rated as 60 percent disabling from July 16, 2008, to January 4, 2015, is denied. The claim of entitlement to an effective date earlier than November 30, 2010, for the award of a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. While service connection was previously granted, the preponderance of the evidence shows that the Veteran does not now suffer from asbestosis, nor has he, at any time during the pendency of this claim. 2. The Veteran’s service connected asbestosis has never rendered him unable to obtain or maintain substantially gainful employment because he never had asbestosis. CONCLUSIONS OF LAW 1. The criteria for a higher initial rating for asbestosis, rated as 10 percent disabling from October 16, 1995, to January 23, 2006, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6833. 2. The criteria for a higher initial rating for asbestosis, rated as 30 percent disabling from January 24, 2006, to July 15, 2008, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6833. 3. The criteria for a higher initial rating for asbestosis, rated as 60 percent disabling from July 16, 2008, to January 4, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6833. 4. The criteria for an effective date earlier than November 30, 2010, for the award of a TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.400(o), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from April 1956 to May 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 1996, August 2008, and October 2011 rating decisions of the Department of Veterans Affairs. Through the March 1996 rating decision, the agency of original jurisdiction (AOJ) granted service connection for asbestosis with a 10 percent initial evaluation. The Veteran timely appealed the decision seeking an increased initial evaluation. In May 1998, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ). During this appeal, the VLJ who conducted the May 1998 hearing retired from employment with the Board. After being informed, the Veteran elected the option of a new hearing. In December 2006, the Veteran testified at another Travel Board hearing before a different VLJ. Both hearing transcripts are in the record. The December 2006 VLJ is also no longer employed with the Board. The Veteran was notified of this fact, and in December 2015, his authorized representative indicated that the Veteran did not wish to participate in an additional hearing. In August 2008, the AOJ issued a rating decision which granted an increased evaluation for the Veteran’s service-connected asbestosis over multiple staged periods. The Veteran continued to express disagreement with the assigned staged ratings and continued to seek the maximum benefit allowed by law for this disability. In August 2008, the Board remanded the issue for additional evidentiary development. In February 2011, the Board remanded the issue again for further evidentiary development. Additionally, the Board found that the issue of entitlement to a TDIU was raised by the Veteran and remanded that issue for additional development and adjudication. In October 2011, the RO issued a rating decision which granted entitlement to TDIU benefits, effective November 30, 2010. In February 2012, the Veteran’s attorney filed a notice of disagreement (NOD) contesting the effective date assigned for the award of TDIU benefits. In April 2012, the Board remanded the issue of entitlement to increased initial ratings for asbestosis for further development and the issue of an earlier effective date for TDIU for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The Board remanded these matters again in February 2013 and December 2015. They are now before the Board again. 1. Entitlement to Higher Initial Staged Ratings for Asbestosis is Denied. The Veteran seeks higher initial staged ratings for his service connected asbestosis. This issue has been remanded several times for additional development due to its complexity and deficiencies found in prior examinations and/or reports. Recently, in February 2018, the Board requested an expert medical opinion from a pulmonologist (and cardiologist, if deemed necessary). The Board received medical opinions from Dr. O’Hearn in March 2018 and September 2018 (addendum). See Dr. O’Hearn Addendum Opinion (Sept. 20, 2018); Dr. O’Hearn Opinion (Mar. 21, 2018). Dr. O’Hearn is an independent board-certified pulmonologist, an Associate Professor at the University of Washington, and a Staff Physician, Section of Pulmonary and Critical Care Medicine, Division of Hospital and Specialty Medicine at the VA Puget Sound Health Care System in Seattle, Washington. In his March 2018 opinion, he repeatedly stated that it was likely that the Veteran did not have asbestosis. See generally Dr. O’Hearn Opinion. In August 2018, the Board requested clarification from Dr. O’Hearn as to whether it was more likely than not that the Veteran does not have asbestosis. In September 2018, the Board received an addendum medical opinion from Dr. O’Hearn stating “[i]t is less likely as not that the veteran has pulmonary asbestosis.” Dr. O’Hearn Addendum Opinion at 1. Dr. O’Hearn reasoned that while an April 1995 x-ray and July 1995 computed tomography (CT) report stated the presence of fibrosis, actual lung parenchymal fibrosis does not go away and would be expected on subsequent radiography. Id. at 1-2. In the Veteran’s case, a chest x-ray in October 1999 from the Pensacola VA Medical Center (VAMC) outpatient center specifically states “No stigmata of asbestosis exposure.” Id. at 2. (presuming that Dr. Pittman, the radiologist for the report, meant to say, “No stigmata of asbestos exposure.”). Dr. O’Hearn also noted that Dr. J.E. Fay, of the Biloxi VAMC, wrote on August 31, 2012, that he reviewed the chest CT dated August 22, 2012, and agreed “with the formal (meaning radiologist’s) reading that he does not have asbestosis.” Id. at 1 (parenthetical in original). Dr. O’Hearn explained that lung fibrosis would have been expected on the August 2012 chest CT with high resolution cuts especially if the fibrosis had been visible on a chest CT scan and even a chest x-ray in 1995. Id.; see also Dr. O’Hearn Opinion at 6 (noting Dr. Neela Mani’s report dated August 31, 2012, stating “[a]sbestosis related fibrosis and pleural plaques are not reversible, they either stay the same over the years or progressively worsen. CT Chest in 2012 being silent for the 1995 reported fibrosis and pleural plaques, shows resolution of the findings on CT Chest dated 7/11/95.”). Given these findings, Dr. O’Hearn concluded that it is less likely than not that the Veteran has ever had asbestosis. Dr. O’Hearn Addendum Opinion at 1. Dr. O’Hearn further concluded that the Veteran does not have cor pulmonale and does not have pulmonary hypertension or require outpatient oxygen therapy as due to his service connected asbestosis. Dr. O’Hearn Opinion at 2-3. Dr. O’Hearn explained that the term cor pulmonale is used to describe right heart failure due to severe lung disease and is not used to refer to right heart failure due to left heart failure. Id. at 2. Left heart failure is the most frequent cause of right heart failure, added Dr. O’Hearn. Id. Given the Veteran’s documented ejection fraction of 25%, Dr. O’Hearn opined it was more likely that the mild pulmonary hypertension suggested by echocardiogram was attributable to the left ventricular dysfunction/concentric hypertrophy and the associated elevated filling pressures of the left ventricle. Id. Dr. O’Hearn also noted that the Veteran commenced oxygen therapy in 2012 after being evaluated by Dr. Fay, a pulmonologist, but concluded that there was no requirement for outpatient therapy due to service connected asbestosis / asbestos-related interstitial lung disease because the Veteran does not have asbestosis. Id. at 3. The Board finds that Dr. O’Hearn’s medical opinions have significant probative value. As a practicing board-certified pulmonologist, Dr. O’Hearn is competent to determine whether the Veteran has asbestosis. The Veteran has not challenged the competency of Dr. O’Hearn. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (noting that, in the absence of evidence to the contrary, VA medical examiners are presumed competent); Monzingo v. Shinseki, 26 Vet. App. 97, 106-07 (2012) (“[T]he general presumption of competence includes a presumption that physicians remain up-to-date on medical knowledge and current medical studies.”); Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (noting that the Board is entitled to assume the competence of a VA examiner who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions); Chastain v. West, 13 Vet. App. 296, 299 (2000). Together, the March and September 2018 opinions are adequate because they contain clear conclusions with supporting data and reasoned medical explanations connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (per curiam) (“An opinion is adequate where it is based on consideration of the veteran’s prior medical history and examinations and describes the disability in sufficient detail so that the Board’s evaluation of the disability is a fully informed one.”) (internal citations omitted). The Veteran has not challenged the adequacy of Dr. O’Hearn’s September 2018 medical opinion. Instead, the Veteran argues that Dr. O’Hearn’s March 2018 medical opinion is inadequate. The Veteran contends that it was inadequate because Dr. O’Hearn (1) did not personally review the Veteran’s actual chest x-rays and chest CT scans, and (2) did not personally interview or physically examine the Veteran. Both arguments are unavailing. The first argument fails because the presumption of competence applies not only to VA examiners, but also their reports. See Sickels v. Shinseki, 643 F.3d 1362, 1365 (Fed. Cir. 2011). Furthermore, the Veteran did not cite to any medical evidence demonstrating why the x-rays and CT reports of record are inadequate to determine the presence of asbestosis or why Dr. O’Hearn could not rely on the prior reports given the presumption of competence which applies to VA examiners. See Sickels, 643 F.3d at 1366; Hardin v. West, 11 Vet. App. 74, 79 (1998) (Board may not substitute its own medical judgment for independent medical evidence); Routen v. Brown, 10 Vet. App 183, 186 (1997) (“[A] layperson is generally not capable of opining on matters requiring medical knowledge”); see also Robinson v. Mansfield, 21 Vet. App. 545, 552-54 (2008) (holding that the Board did not err in failing to discuss an issue when it was not reasonably raised by the appellant or the record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Therefore, the Veteran fails to demonstrate that Dr. O’Hearn’s reliance on the prior x-rays and CT reports renders his opinion inadequate. The second argument also fails because there is no requirement that an opining medical examiner physically examine a veteran unless medically necessary. See, e.g., Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (examiners who prepared opinions without examining veteran were presumed competent); Parks v. Shinseki, 716 F.3d 581, 583 (Fed. Cir. 2013) (same); Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (same). Again, the Veteran did not cite to any medical evidence demonstrating why an in-person examination was necessary to rule out asbestosis and did not explain why the voluminous medical history of record was inadequate from which Dr. O’Hearn could render his opinion. D’Aries, 22 Vet. App. at 104; see also Acevedo v. Shinseki, 25 Vet. App. 286, 294-95 (2012) (“[T]here is no reasons or bases requirement imposed on examiners.”); Robinson, 557 F.3d at 1361. Therefore, the Veteran’s arguments are unavailing. The Veteran is correct that he is still service connected for asbestosis. Pursuant to 38 C.F.R. § 3.951(b), the Veteran’s ratings are protected because the disability has been continuously rated for 20 or more years. Id. (“A disability which has been continuously rated at or above any evaluation of disability for 20 or more years…will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation.”). Nevertheless, as his representative noted, the medical record until this point has not included maximum exercise capacity testing which, depending on the results, could help him obtain a 60 percent or 100 percent rating under Diagnostic Code 6833. See generally Rep.’s Correspondence (Dec. 11, 2017). The Veteran contends that this inadequacy can be remedied through a remand to obtain a retrospective medical opinion regarding his maximum exercise capacity. See id. Additionally, the Veteran contends that any symptoms for which there is no determinable cause should be attributed to his non-existent asbestosis, albeit service connected. See Correspondence at 4 (June 7, 2018). These arguments are not persuasive. The applicable regulation states that pulmonary function tests (PFTs), not maximum exercise capacity tests, are required to evaluate conditions under certain diagnostic codes including diagnostic code 6833. 38 C.F.R. § 4.96(d)(1). Indeed, Section 4.96(d)(1)(i) states “[i]f a maximum exercise capacity test is not of record, evaluate based on alternative criteria.” In this case, there are no maximum exercise capacity tests for the periods on appeal; therefore, the PFTs govern the evaluation of the condition. Furthermore, Section 4.96(d)(3) indicates that PFTs are a more reliable measure of respiratory functional impairment. Id. § 4.96(d)(3) (“When the PFT’s are not consistent with clinical findings, evaluate based on PFT’s unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case.”). The Veteran has not argued that the PFT results of record are inadequate, in and of themselves, from which to rate his disability. Robinson, 557 F.3d at 1361. While the Board would have preferred both the PFT results and maximum exercise capacity test results when evaluating the Veteran’s condition, the duty to assist by providing a medical examination or obtaining a medical opinion is not mandatory or automatic. See McLendon v. Shinseki, 20 Vet. App. 79, 81 (2006). The duty to assist only requires the Secretary to provide a claimant with a medical examination or opinion “when such an examination or opinion is necessary to make a decision on the claim.” 38 U.S.C. § 5103A(d)(1). In this case, despite the absence of maximum exercise capacity tests during the appeal periods, the Veteran’s service connected respiratory disorder can be appropriately rated based on the PFTs of record. See 38 C.F.R. § 4.96(d)(1)(i). Another remand for a retrospective medical opinion, as requested by the Veteran, would simply amount to a fishing expedition for potentially more favorable information. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (holding that the duty to assist is not a fishing expedition “to determine if there might be some unspecified information which could possibly support a claim.”); see also Swift v. Shinseki, No. 11-1750, 2012 U.S. App. Vet. Claims LEXIS 2032 at *9 (Sep. 25, 2012) (holding that where an examiner determined there was not enough evidence to provide a retrospective opinion, the Board did not err by not requesting another opinion), aff’d Swift v. Shinseki, 550 Fed. Appx. 886 (Fed. Cir. 2014). Here, Dr. O’Hearn found that the Veteran did not have other conditions that would warrant an increased rating (e.g. cor pulmonale). Dr. O’Hearn Opinion at 2-3. Dr. O’Hearn also found it was not possible to determine the Veteran’s maximum exercise capacity without any data on the Veteran’s oxygen consumption achieved during exercise testing during that time. Dr. O’Hearn Opinion at 4; see also Dr. Beatty Opinion (Apr. 2, 2018) (a board-certified cardiologist finding that there was no evidence of the Veteran ever having a documented maximum exercise capacity of less than 15 ml/kg/min oxygen consumption). The Board must rely on independent medical evidence, and not its own judgment, when the rating criteria involve a medical assessment. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990). Since the Veteran’s level of disability during the appeal period cannot be determined without speculation, then the evidence cannot be in equipoise and no further medical examinations or opinions are warranted in this case. Chotta v. Peake, 22 Vet. App. 80, 86 (2008); see also McLendon, 20 Vet. App. at 81 ((quoting 38 U.S.C. § 7261(a)(holding that the Board’s determination as to whether a medical opinion is warranted is reviewed under the “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” standard of review)). Finally, by implication, none of the Veteran’s symptoms are attributable to asbestosis because he has never had asbestosis. Dr. Hearn Addendum at 1. For medical evidence to be given weight, it must be: (1) based on sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). Requiring an examiner on remand to assume the Veteran has asbestosis would not only violate Colvin, but also ensure that any corresponding medical evidence was not the result of reliable medical principles and methods. See Nieves-Rodriquez, 22 Vet. App. at 302; see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based on an inaccurate factual premise has no probative value). For these reasons, the Board concludes that the Veteran is not entitled to higher initial staged ratings for asbestosis. This holding does not negatively impact the Veteran’s current benefits for asbestosis because, as previously noted, the benefits are protected by 38 C.F.R. § 3.951(b). 2. Entitlement to an effective date earlier than November 30, 2010, for the award of a TDIU is denied. The Veteran seeks an earlier effective date for the grant of a TDIU. The Veteran formally filed a claim for entitlement to a TDIU on November 30, 2010, which is currently the effective date assigned for the TDIU award. However, the Veteran contends that the grant of a TDIU should date back to 1999 because that is when he was last gainfully employed and when he allegedly retired due to his disabilities, namely his asbestosis. Correspondence at 3-4 (Dec. 11, 2017) (“Since the veteran’s asbestosis claim was pending at the time he had to stop working due to his service-connected disability, he respectfully requests that he be awarded an earlier effective date of 1999, when he stopped working.”). The Board notes that TDIU is only warranted when a veteran is unable to secure or follow a substantially gainful occupation due to a service connected disability or disabilities. The ultimate question of whether a Veteran is capable of substantially gainful employment is for the adjudicator, not a medical examiner. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner”); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Here, the Veteran’s TDIU claim stems from his appeal of the initial rating(s) for asbestosis; thus, the focus is on whether his respiratory condition, previously characterized as asbestosis, rendered him unable to secure or follow a substantially gainful occupation prior to November 30, 2010. As previously discussed, the evidence of record fails to reflect this conclusion. For these reasons, the Board finds that the Veteran is not entitled to an earlier effective date for the assignment of a TDIU. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel