Citation Nr: 18154384 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 17-52 633 DATE: November 29, 2018 ORDER The reduction from 60 percent to 10 percent for pleural plaque in the right hemothorax was improper; restoration of a 60 percent rating is granted, effective January 1, 2019, subject to the laws and regulations governing the payment of monetary benefits. A rating of 60 percent for pleural plaque in the right hemothorax is denied. REMANDED A total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. At the time of the reduction, the Veteran’s service-connected pleural plaque in the right hemothorax will have been rated as 60 percent disabling since September 2, 2005, a period of more than 5 years. 2. Any improvement in the Veteran’s pleural plaque in the right hemothorax did not reflect an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. 3. The Veteran’s pleural plaque in the right hemothorax is manifested by pulmonary function testing indicative of a 60 percent rating and the use of a daily bronchodilator, without cor pulmonale, pulmonary hypertension or a requirement of outpatient oxygen therapy. CONCLUSIONS OF LAW 1. The reduction of the rating for pleural plaque in the right hemothorax from 60 percent to 10 percent for pleural plaque in the right hemothorax was improper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.97, Diagnostic Codes (DC) 6833. 2. The criteria for a rating in excess of 60 percent for pleural plaque in the right hemothorax were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, DC 6833. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1955 to September 1959. The case is on appeal from a July 2015 rating decision denying a rating in excess of 60 percent for pleural plaque in the right hemothorax. During the course of the appeal, the RO proposed to reduce the Veteran’s rating for pleural plaque in the right hemothorax to 10 percent in an October 2017 rating decision and effectuated the reduction to 10 percent, effective January 1, 2019, in an October 2018 rating decision. At that time, a supplemental statement of the case (SSOC) was issued adjudicating whether a rating in excess of 10 percent was warranted. Because the rating reduction arose in connection to, and is so intertwined with the Veteran’s increased rating claim now before the Board, the Board will necessarily adjudicate both in the course of this appeal. Further, during the June 2018 VA examination, there was an indication that the Veteran’s service-connected disability may prevent him from working. Therefore, the Board finds that the issue of entitlement to TDIU has been raised as part and parcel of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. The propriety of a reduction from 60 percent to 10 percent for pleural plaque in the right hemothorax. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. Congress has provided that a veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. For ratings that have been in effect for five years or more, as in this case, reduction is warranted when reexamination discloses sustained material improvement. 38 C.F.R. § 3.344 (a), (b); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in a Veteran’s ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000). When a rating reduction has the effect of reducing the compensation paid to the Veteran, 38 C.F.R. § 3.105 imposes certain procedural requirements before VA can effectuate the rating reduction. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The veteran must be allowed an opportunity to participate in a personal hearing, with the request received within 30 days of the notice provided, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e), (i). After the allotted period, if no additional evidence has been submitted, final rating action will be taken, and the rating will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating expires. 38 C.F.R. § 3.105(e). The Veteran’s pleural plaque in the right hemothorax has been rated under 38 C.F.R. § 4.97, DC 6833 for asbestosis. This DC provides for a 100 percent rating for forced vital capacity (FVC) less than 50-percent predicted, or; Diffusion Capacity of the Lungs for Carbon Monoxide by the Single Breath Method (DLCA (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; requires outpatient oxygen therapy. A 60 percent rating is available for FVC of 50- to 64-percent predicted, or; DLCO (SB) of 40- to 55- percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 30 percent rating is available for FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted. A 10 percent rating is available for FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66- to 80-percent predicted. Analysis The Veteran does not dispute the procedural aspects of the reduction. Rather, he contends that his pleural plaque in the right hemothorax has not improved. For the reasons set forth below, the Board agrees that the reduction was improper, and the 60 percent rating will be restored. The Veteran’s 60 percent rating was assigned on the basis of a September 2005 VA examination. At that time, the Veteran experienced shortness of breath upon walking 1-2 blocks or 1-2 flights of stairs. FVC was 49.2-percent predicted and Forced Expiratory Volume in one second (FEV-1) was 42.8-percent predicted. The examiner noted pleural plaques and probable obstructive lung disease. A VA treatment record from February 2015, shows pre-bronchodilator pulmonary testing results. FVC was 40-percent predicted, and FEV-1 was 35-percent predicted. Predicted value for FEV-1/FVC was not given. In May 2015, the Veteran was afforded a VA examination in conjunction with his increased rating claim. Diagnoses of chronic obstructive pulmonary disease (COPD), pleural plaque, and right hemothorax were noted. The Veteran noted it gets harder to breath all the time. Current symptoms included shortness of breath, difficulty breathing, and dyspnea on exertion. For instance, the Veteran had difficulty walking 20 feet down the hallway to the examination room. The examiner indicated that the Veteran required daily use of oral or parenteral high-dose corticosteroids or immunosuppressive medications, but the medication used was not indicated. Use of a daily inhalation bronchodilator was also noted. Pre-bronchodilator, FVC was 53-percent predicted and Forced Expiratory Volume in one second (FEV-1) 69-percent predicted. Post-bronchodilator, FVC was 56-percent predicted, and FEV-1 66-percent predicted. The test most accurately reflecting the Veteran’s level of disability was said to be FEV-1/FVC. FEV-1/FVC was said to most accurately reflect the Veteran’s pulmonary functioning, but FEV-1/FVC was not recorded. COPD was said to be primarily responsible for limitation in pulmonary function. Another examination was conducted in October 2016. At that time, diagnoses of COPD and pleural plaque in the right hemothorax. He noted treatment with Symbicort. He stated that he can lie flat with a continuous airway pressure (CPAP) machine. After walking from his building to his truck, he needs to rest awhile. No oral or parenteral corticosteroid was used for control. Symicort was indicated as a daily inhaled bronchodilator. A chest x-ray showed a mild amount of calcified pleural plaque bilaterally. Imaging showed partially reversible obstructive airway disease. Pre-bronchodilator, FVC was 73-percent predicted, FEV-1 54-percent predicted, and FEV-1/FVC was 52-percent predicted. Post-bronchodilator, FVC was 76-percent predicted, Forced Expiratory Volume in one second (FEV-1) 63-percent predicted, and FEV-1/FVC was 58-percent predicted. The test most accurately reflecting the Veteran’s level of disability was said to be FEV-1/FVC. DLCO was said not to be indicative of the Veteran’s functional limitations, and no exercise testing was performed. Both COPD and pleural plaque in the right hemothorax were said to be predominately responsible for the limitation in pulmonary function. Functional limitations were noted as increased dyspnea on exertion over time due to COPD and difficulty walking more than one block. Overall, an October 2016 treatment record from Southeast Hospital characterized this as diminished FEV-1 to FVC ratio with absolute FEV-1 moderately impaired. Significant response for FEV-1 was noted following bronchodilator. The examiner then opined that, while pleural plaques are present bilaterally and likely caused by asbestos inhalation, they are likely not causing shortness of breath. Rather, a correct current diagnosis of the Veteran’s pulmonary disorder was given as COPD. An examiner again reviewed the medical evidence of record in February 2018. Diagnoses of COPD and restrictive lung disease were noted. Records showed that the Veteran used daily bronchodilator and anti-inflammatory medication. February 2018 pulmonary testing showed pre-bronchodilator FVC of 79-percent predicted, FEV-1 67-percent predicted, and FEV-1/FVC was 59-percent predicted. Post-bronchodilator, FVC was 78-percent predicted, Forced Expiratory Volume in one second (FEV-1) 68-percent predicted, and FEV-1/FVC was 61-percent predicted. DLCO was 66-percent predicted. The test most accurately reflecting the Veteran’s level of disability was said to be FEV-1/FVC. The Veteran’s COPD and restrictive airway disease secondary to service-connected pleural plaques were cited as the conditions predominately responsible for limitation in pulmonary functioning. It was also stated that the Veteran would have difficulty with employment activities because of ongoing chronic airway impairment. Private pulmonary function testing from February 2018 was similar to that found at the time of the VA examination. Dr. Graham, the Veteran’s private physician, noted that pulmonary testing showed improvement in some measures, but not others. Private treatment notes from March 2018 note the use of inhalers for shortness of breath for exhaustion. The note also states that the Veteran cannot walk more than 25 yards, has difficulty working with his arms over his head, and is very limited in housework or yardwork because of shortness of breath. Most recently, in October 2018, the Veteran submitted a letter from Dr. Graham stating that the Veteran’s shortness of breath is related to several conditions, including asbestos-induced pleural plaques, probable asbestosis, COPD, and pulmonary hypertension. From the medical evidence, the main question becomes whether and to what extent the Veteran’s pulmonary symptoms are due to his service-connected disability. In resolving this inquiry, the Board is mindful of 38 C.F.R. § 3.344(a) which states, “Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability.” Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The medical opinions that attribute symptoms to COPD over pleural plaque in the right hemothorax are confusing. For instance, while the October 2016 VA examiner stated COPD rather than pleural plaque was more likely causing shortness of breath, in the examination report itself COPD and pleural plaques were said to contribute to poor pulmonary functioning. In addition, Dr. Graham has noted that the Veteran’s shortness of breath is due, at least in part, to service-connected disabilities. Thus, the Board does not find that the Veteran’s limitations in pulmonary functioning can be clearly attributed to COPD or a nonservice-connected disorder. Further, in recent VA examinations functional limitations have been described as being only able to walk one block, from his building to his truck, and having shortness of breath upon walking 20 feet down a hallway. This was similar, and perhaps slightly more significant, than the limitation of walking 1-2 blocks and 1-2 flights of stairs in the September 2005 VA examination. Thus, even if pulmonary function testing had improved, the Veteran’s pulmonary functioning has not improved under the ordinary conditions of life and work. The reduction was thus improper, and a 60 percent rating will be restored. 38 C.F.R. § 3.344(a). 2. A rating in excess of 60 percent for pleural plaque in the right hemothorax. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis With the 60 percent rating restored, the Board now turns to the Veteran’s increased rating claim that precipitated the appeal in the first place. The question is whether a higher 100 percent rating is warranted under 38 C.F.R. § 4.97, DC 6833 for asbestosis, the rating criteria being described above. A rating in excess of 60 percent for pleural plaque in the right hemothorax is not warranted. As noted in the VA examination reports discussed above, the Veteran’s pulmonary function testing does not meet the criteria listed for the 100 percent rating. The Board does note that the Veteran uses a daily bronchodilator for control. In light of this report, the Board has considered other schedular ratings that consider the use of daily bronchodilators; however, higher ratings are not available. In the May 2015 VA examination, the examiner reported that the Veteran regularly used parental or corticosteroids for control; however, this is not supported by other medical evidence of record, including other VA examination reports. The Board finds that the Veteran does not use parental or corticosteroids for control. Furthermore, this evidence does not show cor pulmonale, pulmonary hypertension or a requirement for outpatient oxygen therapy. Therefore, the preponderance of the evidence is against a higher rating and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, a rating in excess of 60 percent for pleural plaque in the right hemothorax is not warranted.   REASONS FOR REMAND A TDIU. At the June 2018 VA examination, with regard to the functional impacts of the Veteran’s service-connected respiratory disability, the examiner stated, “See previous C&P exam done 21, May 2015. The veteran would continue to experience difficulty with employment activities secondary to ongoing chronic airway impairment, as described above.” June 2018 Examination Report at 4. The May 2015 VA examination reported noted the Veteran’s difficulty walking short distances down a hallway to the examination room. Given the functional limitations noted in the record, this raises the issue of whether the Veteran, due to his service-connected respiratory disability, would be able to establish or maintain gainful employment. 38 C.F.R. § 4.16. However, the Board does not have adequate information regarding the Veteran’s educational and employment history to make such an assessment. On remand, such information should be obtained from the Veteran. Additionally, the RO will have an opportunity to address the issue in the first instance. The matter is REMANDED for the following action: (Continued on the next page)   Request that the Veteran fill out VA Form 21-8940 or other appropriate form so that the Veteran’s employment and educational history may be obtained. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George