Citation Nr: 18148221 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-37 825 DATE: November 7, 2018 ORDER Entitlement to an initial 100 percent rating for service-connected reactive airways, an obstructive and restrictive ventilatory dysfunction with pulmonary fibrosis (claimed as asbestosis), under Diagnostic Code 6845, is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT The Veteran’s respiratory symptoms are productive of a diffusing capacity of the lungs for carbon monoxide (DLCO) of less than 40 percent. CONCLUSION OF LAW The criteria for an initial 100 percent rating for the Veteran’s service-connected reactive airways, an obstructive and restrictive ventilatory dysfunction with pulmonary fibrosis (claimed as asbestosis), rated under Diagnostic Code 6845, have been met. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.97, Diagnostic Code 6845 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from October 1960 to July 1962. In February 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran’s disability on appeal was initially characterized as asbestosis. However, the Veteran’s disability should be characterized as obstructive and restrictive ventilatory dysfunction with pulmonary fibrosis (claimed as asbestosis). More specifically, upon review of the medical evidence relied upon by the May 6, 2016, Board, it awarded service connection for asbestosis based upon a medical finding of “obstructive and restrictive ventilatory dysfunction with pulmonary fibrosis.” See Cardio-Pulmonary Diagnostic LLC, dated March 19, 2015. This diagnosis was also confirmed by a July 27, 2018, VHA opinion, where it was noted that the Veteran was diagnosed with “reactive airways, an obstructive and restrictive ventilatory dysfunction with pulmonary fibrosis.” Given the aforementioned diagnosis and to allow for the appropriate rating of the Veteran’s disability, the disability is characterized as reactive airways, an obstructive and restrictive ventilatory dysfunction with pulmonary fibrosis (claimed as asbestosis). Increased Ratings A. General Principles and Regulations Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2017). B. Analysis The Veteran is service-connected for asbestosis with a non-compensable rating under Diagnostic Code 6833. The Veteran contends that his respiratory condition warrants a higher rating. When determining whether the Veteran is entitled to a higher rating for his respiratory condition, the Board first notes that while the Veteran has been service-connected for asbestosis, the medical evidence of record does not reflect the Veteran has asbestosis. However, the record supports that the Veteran does have other asbestos-related pulmonary diagnoses. Particularly, the medical records provided by the Veteran’s private doctor, Dr. P. reflect that the Veteran has severe obstructive and restrictive ventilatory dysfunction with pulmonary fibrosis. Additionally, in a July 2018 VHA medical opinion, Dr. M.J., who also noted that the Veteran does not have asbestosis, noted that the Veteran carries diagnoses of reactive airways, obstructive and restrictive ventilatory dysfunction with pulmonary fibrosis, pulmonary vascular disease, and sleep apnea. When assessing which diagnostic code would yield a higher rating for the Veteran with respect to his respiratory symptoms, the Board now turns to the Veteran’s VA and private medical records that show he underwent Pulmonary Function Testing (PFT) on multiple occasions. In a July 2013 from a private examination by Dr. P., the Veteran’s PFT results show a forced vital capacity (FVC) of 39 percent of that predicted. The examiner also stated that following administration of bronchodilators, there is a significant response indicated by the increased FVC. The reduced diffusing capacity indicates a severe loss of functional alveolar capillary surface. However, the diffusing capacity was not corrected for the patient’s hemoglobin. The examiner concluded that the diffusion defect is consistent with a pulmonary vascular process. Although the flow rates are within normal limits, the overinflation and response to bronchodilators are characteristic of reactive airways. Anemia cannot be excluded as a potential cause of the diffusion defect without correcting the observed diffusing capacity for hemoglobin. In a February 2014 VA examination, PFT results show an FVC of 64 percent of that predicted and an DLCO of 52 percent predicted. The examiner also diagnosed the Veteran with asbestos exposure but found no evidence of asbestos related disease, no pleural plaques or interstitial fibrosis, no infiltrates or significant emphysema. He also stated the Veteran has no multiple respiratory conditions. He concluded there is no evidence of asbestos related disease at this time. In a February 2014 private examination, PFT results show an FVC of 49 percent of that predicted. The examiner also stated that it is more likely than not that the Veteran has severe obstructive and restrictive ventilatory dysfunction with pulmonary fibrosis. The examiner ultimately concluded that with reasonable medical probability more likely than not his pulmonary illness is caused by various organic dust and asbestos exposure in the service. In a March 2015 private examination, PFT results show an FVC of 39 percent of that predicted. The examiner also stated that the Veteran has moderate impairment due to restrictive and obstructive defects. No bronchodilator response was noted, while, marked reduction of diffusing capacity was noted. In a June 2016 VA examination, PFT results show an FVC of 65.4 percent of that predicted and a DLCO of 37.1 percent predicted. Although the VA examiner did not diagnose the Veteran with a respiratory condition, the VA examiner indicated that the Veteran’s respiratory condition required daily use of inhalational bronchodilator therapy and daily use of an inhalational anti-inflammatory medication. The examiner also found no evidence of asbestos related pleural disease, no evidence of interstitial fibrosis, no suspicious mass or nodule, and mild dependent atelectasis in the lung base. The examiner also stated that the Veteran’s condition that is predominantly responsible for limitation in pulmonary function is sleep apnea. He remarked that the Veteran was service granted for asbestosis even though the CT scan for such was negative. In an August 2016 private examination by Dr. P., PFT results show an FVC of 65.4 percent of that predicted and a DLCO of 37.1 percent predicted. The examiner stated that the Veteran complains of exertional dyspnea and heaviness in the chest for the past two years. He complains of acute cough, experiences shortness of breath with moderate exertion, experiences wheezing with exertion, and complains of sleep apnea symptoms which include and are limited to fatigue, day time somnolence, weight gain and loss of energy. The examiner also stated that the Veteran’s rales/crackles are bilaterally diffuse, and expiratory and inspiratory wheezing is present and is bilaterally diffuse. Lastly, in a July 2018 VHA medical opinion, Dr. M.J. was asked to review the medical records, and note the Veteran’s current respiratory diagnoses, assess whether it can be determined whether the PFT results can be differentiated between the Veteran’s diagnoses, and what are the PFT results for each of the Veteran’s respiratory diagnoses. As previously stated above, Dr. M.J. noted that the Veteran carries diagnoses of reactive airways, an obstructive and restrictive ventilatory dysfunction with pulmonary fibrosis, pulmonary vascular disease, and sleep apnea. Particularly, the examiner noted that the Veteran’s chest CT scan failed to show any interstitial fibrosis or pleural plaques which is strong evidence against asbestosis. The examiner noted that for asthma the usual PFT pattern is a normal or low FVC, a low or normal forced expiratory volume-one second (FEV1), a low or normal FEV1/FVC ratio and a positive bronchodilator response as assessed by a significant (greater than 12% and an absolute rise of more than 200cc) increase in the FEV1 or FVC. For pulmonary fibrosis, for which asbestosis can be a cause, the FVC and FEV1 are both low, but the FEV1/FVC ratio is normal or increased and there is no significant bronchodilator response. The total lung capacity (TLC) and DLCO is normal in asthma and both are usually low in pulmonary fibrosis. Next, the Board has reviewed diagnostic codes 6602 (asthma), 6817 (pulmonary vascular disease), 6833 (asbestosis); and 6845 (chronic pleural effusion or fibrosis) based on the medical evidence and the Veteran’s respiratory symptoms. In reviewing the medical evidence, the Board points out that both the July 2018 VA examiner and the private examiner (Dr. P.) note the Veteran’ has pulmonary fibrosis. Significantly, the medical evidence reflects that the Veteran’s DLCO results have always been low. This is reflected in the June 2016 VA examination which reflects a DLCO result of 37.1 percent predicated. As well as in the August 2016 private examination, which reflects a DLCO result of 37.1 percent predicated. Furthermore, as stated by Dr. M.J. in the July 2018 medical opinion, DLCO results are usually low in cases of pulmonary fibrosis. Thus, after reviewing all applicable diagnostic codes, the Board finds the most appropriate and advantageous diagnostic code based on the Veteran’s medical evidence and the Veteran’s symptoms, specifically his PFT results, which would give the Veteran a maximum 100 percent rating, is under Diagnostic Code 6845 (chronic pleural effusion or fibrosis), based on the Veteran’s consistent diagnosis of pulmonary fibrosis. Pulmonary fibrosis under Diagnostic Code 6845 is rated under the General Formula for Restrictive Lung Disease. The General Rating Formula for Restrictive Lung Disease provides that an FEV-1 of 71- to 80-percent predicted value, or; the ratio of FEV-1/FVC of 71 to 80 percent, or; an DLCO (SB) is 66- to 80-percent predicted, is rated 10 percent disabling. FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent or; DLCO (SB) 56- to 65-percent predicted, is rated 30 percent disabling. FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), is rated 60 percent disabling. FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy, is rated 100 percent disabling Here, the Board notes that the Veteran’s DLCO is 37.1 percent predicted as a reflected in his June 2016 VA and August 2016 private examination reports. Thus, under the rating criteria, since his DLCO is less than 40 percent predicted, the Veteran’s pulmonary fibrosis would satisfy a 100 percent rating under Diagnostic Code 6845. Therefore, under Diagnostic Code 6845, the Veteran is entitled to full grant of benefits of a 100 percent rating for his service-connected respiratory condition. Given such, as receipt of a 100 percent rating represents a full grant of benefits sought, there remain no other issues with respect to this claim on appeal. REASONS FOR REMAND With respect to the Veteran’s claim for service connection for sleep apnea, the Board finds additional development is warranted. Here, the Veteran contends that his obstructive sleep apnea is secondary to his respiratory condition. The Veteran was afforded a VA examination for sleep apnea in September 2016. The VA examiner noted a positive diagnosis for sleep apnea. However, the VA examiner ultimately opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of the Veteran’s service-connected condition. Significantly, the VA examiner failed to opine whether the Veteran’s sleep apnea is at least as likely not as aggravated by the Veteran’s respiratory condition. Given such, an addendum opinion is warranted. The matter is REMANDED for the following action: 1. With respect to the Veteran’s claim for sleep apnea, obtain an addendum opinion from a qualified medical professional, which after review of the entire claims file addresses the following: (a) Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s sleep apnea is (1) proximately caused by or (2) proximately aggravated by the Veteran’s service-connected respiratory condition. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel