Citation Nr: 18161312 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 15-40 116 DATE: December 31, 2018 ORDER A rating in excess of 0 percent for asbestosis with bilateral calcified pleural plaques (previously claimed as a respiratory condition) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s asbestosis with bilateral calcified pleural plaques has manifested itself to a compensable degree at any time within the appellate period. CONCLUSION OF LAW The criteria for a rating in excess of 0 percent for asbestosis with bilateral calcified pleural plaques have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.97, DC 6833 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1945 to July 1946. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. Increased Rating General Legal Criteria Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. Asbestosis with bilateral calcified pleural plaques Legal Criteria for Interstitial Lung Diseases The Veteran’s asbestosis is rated under 38 C.F.R. § 4.97, DC 6833. Disabilities evaluated under Diagnostic Codes 6825 through 6833 are rated using the General Rating Formula for Interstitial Lung Disease (General Rating Formula). 38 C.F.R. § 4.97. Under the General Rating Formula, a 10 percent disability rating will be assigned for Veterans with either (1) a forced vital capacity (FVC) test result of 75 to 80 percent predicted, or (2) a single breath test of the diffusing capacity of the lungs for carbon monoxide (DLCO (SB)) test result of 66 to 80 percent predicted. An FVC of 65 to 74 percent predicted or a DLCO (SB) of 56 to 65 percent predicted warrants a 30 percent rating. An FVC of 50 to 64 percent predicted, or; a DLCO (SB) of 40 to 55 percent predicted, or; a maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation warrants a 60 percent rating. Id. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are used for rating purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be performed and explains why. 38 C.F.R. § 4.96 (d)(4). When evaluating a disability based upon PFT results, post-bronchodilator results are used unless they give a poorer result than the pre-bronchodilator results. In those cases, the pre-bronchodilator results are used. 38 C.F.R. § 4.96 (d)(5). Here, the Board finds that the Veteran’s post-bronchodilator results are the most appropriate test to evaluate his disability. In this regard, there is no indication that post-bronchodilator results gave a poorer result than the pre-bronchodilator results. If the DLCO (SB) test is not of record, the disability may be rated based on alternative criteria as long as the examiner explains why the DLCO (SB) test would not be useful or valid in a particular case. 38 C.F.R. § 4.96 (d)(2) (2017). Factual Background During the August 2013 VA respiratory examination, the examiner noted that the Veteran currently has asbestosis based on bilateral calcified pleural plaques that were compatible with chronic bronchitis. During pulmonary function testing (PFT), the Veteran was found to have an FVC of 5 liters, 124% predicted. The FEV-1 was 3.27 liters, 116% predicted. The FEV1/FVC ratio was normal. The total lung capacity was normal. The diffusion capacity was normal. An addendum to the August 2013 examination note was entered in June 2016 following a PFT. The Veteran was found to have an FVC of 4.28 liters, which was 121% predicted. The FEV-1 was 2.86 liters, 118% predicted. The FEV1/FVC ratio was normal. The total lung capacity was normal. The diffusion capacity was normal. Analysis The Board has reviewed the entire claims file but finds no evidence of record that would warrant a rating in excess of 0 percent for the Veteran’s service-connected asbestosis with bilateral calcified pleural plaques at any time during the period on appeal. As noted above, under Diagnostic Code 6833, a 10 percent rating is warranted for an FVC of 75 to 80 percent predicted. In this case, throughout the pendency of the claim, the Veteran’s FVC has exceeded 80 percent predicted at the time of the June 2016 examination. Based on this evidence, the Board finds that the disability picture more closely resembles the criteria for the currently assigned 0 percent rating. DLCO results have also been considered. A DLCO (SB) test of 66 to 80 percent predicted warrants a 10 percent rating. The Veteran’s DLCO was reported at 101% at the June 2016 VA respiration examination. Thus, the Board finds that the DLCO findings also do not support the assignment of a rating in excess of 0 percent. Lastly, a rating in excess of 0 percent may be assigned if the maximum exercise capacity is 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation, or if there is cor pulmonale, pulmonary hypertension or if the Veteran requires oxygen therapy. First, the medical evidence does not show cor pulmonale, pulmonary hypertension, or the requirement of oxygen therapy. Therefore, an increased rating is not warranted based on these criteria. Second, an increased rating is not warranted based on exercise capacity. In this regard, exercise capacity was not tested in the VA examinations of record, and no other medical evidence of record to suggest that the Veteran’s asbestosis with fibrosis has resulted in a maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardio-respiratory limitation at any point during the appeal. Finally, the Board has considered whether other Diagnostic Codes might be more appropriate or provide a more favorable disability rating for the Veteran’s asbestosis with fibrosis. However, the Board finds that Diagnostic Code 6833 is the most appropriate Diagnostic Code because it specifically pertains to the service-connected disability in this case: asbestosis. No other diagnostic code would be more appropriate. The Board has considered other diagnostic codes for other respiratory disorders such as fibrosis (Diagnostic Code 6845), and chronic pleural effusion or fibrosis (Diagnostic Code 6845), but these Diagnostic Codes would not provide higher ratings, even on the basis of the Veteran’s FEV-1, FEV, or DLCO readings. The Board notes that neither the Veteran nor his representative has requested that another diagnostic code be used to evaluate his service-connected disability. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 6833. In reaching the above conclusions, the Board has sympathetically considered the Veteran’s statements made during his August 2017 hearing that he can no longer walk multiple blocks and has difficulty performing basic tasks due to the severity of his disability causing him to be out-of-breath. The Board finds that these statements are credible and the Veteran is qualified to report these observable symptoms. These statements, however, must be viewed in conjunction with the medical evidence, as required by the rating criteria. Despite his credible report of symptoms, the Veteran is not qualified (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 pulmonary function has been provided by the medical personnel who examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluation. The medical findings, as provided in the examination reports, directly address the criteria under which this disability must be evaluated. In sum, the preponderance of the evidence of record weighs against the assignment of a rating in excess of 0 percent for service-connected asbestosis with bilateral calcified pleural plaques. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b). The Board regrets that, by law, a more favorable result cannot be provided and notes that this decision does not leave the Veteran without recourse. If the disability should worsen in the future, the Veteran is free to submit a claim for an increased rating at that time. The Board expresses profound gratitude to the Veteran for the sacrifices he has made in service to this country. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McKone, Law Clerk