Citation Nr: 1807308 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-23 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial rating higher than 10 percent for asbestosis. REPRESENTATION Veteran represented by: Massachusetts Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Buck Denton, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran submitted new and material evidence within one year of a July 2009 rating decision regarding the evaluation of the Veteran's asbestosis. Specifically, he submitted a June 2010 statement (VA Form 21-4138) asserting that his asbestosis had worsened. See 38 C.F.R. § 3.156(a) (2017) (defining new and material evidence). The July 2009 rating decision is dated less than a year since the January 2009 rating decision granting service connection for asbestosis and assigning an initial rating of 10 percent. The July 2009 rating decision was issued due to new evidence submitted since the January 2009 rating decision. Accordingly, the Board finds that the appeal of the November 2010 rating decision relates back to the Veteran's initial claim for service connection. See 38 C.F.R. § 3.156(b) (2017) (providing that if new and material evidence is received within one year after the date of mailing of an RO decision, it will be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period"); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final). The Board remanded this claim in June 2016 for further development. It now returns for appellate review. The Veteran and his spouse testified at a hearing before the undersigned in May 2015. A transcript is of record. FINDING OF FACT The Veteran's service-connected respiratory disorder due to asbestosis has been manifested by a post-bronchodilator FVC (forced vital capacity) no lower than 79 percent of predicted value, and by a DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) no lower than 68 percent of predicted value. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for asbestosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Code (DC) 6833 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's service-connected asbestosis is currently rated as 10 percent disabling, effective July 29, 2008. The Veteran asserts that his asbestosis is more disabling than reflected by the currently assigned 10 percent disability rating. For the following reasons, the Board finds that the criteria for a rating higher than 10 percent are not satisfied. I. General Rating Considerations VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see, generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2017). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The evaluation of the same manifestation under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. II. Applicable Rating Criteria The Veteran has been diagnosed with asbestosis and pleural plaques consistent with asbestos exposure. This respiratory disorder has been rated as 10 percent disabling under Diagnostic Code (DC) 6833 for asbestosis. 38 C.F.R. § 4.97. Under DC 6833, asbestosis is to be rated under the General Rating Formula for Interstitial Lung Disease (General Rating Formula). Id. The General Rating Formula provides as follows: A 100 percent evaluation is assigned for FVC less than 50 percent of predicted value, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale (right heart failure) or pulmonary hypertension, or; requires outpatient oxygen therapy. A 60 percent evaluation is assigned 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 evaluation is assigned for FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65- percent predicted. A 10 percent evaluation is assigned for FVC of 75- to 80-percent predicted value, or; DLCO (SB) of 66- to 80-percent predicted. Id. A maximum exercise capacity test need not be conducted in any case. 71 Fed. Reg. 52457-01 (Sept. 6, 2006); see 38 C.F.R. § 4.96(d)(1) (providing that with regard to certain diagnostic codes pertaining to respiratory conditions, including DC 6833, if a maximum exercise stress test is not of record, the disability is to be evaluated based on alternative criteria). Post-bronchodilator pulmonary function test (PFT) results are to be used when applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, the pre-bronchodilator values are to be used for rating purposes. 38 C.F.R. §4.96 (d)(5). III. Analysis The preponderance of the evidence shows that the Veteran's asbestosis has not met or more nearly approximated the criteria for a rating higher than 10 percent. The report of an October 2008 VA examination (contracted out to a private provider) reflects a post-bronchodilator FVC of 81 percent of predicted value. The examiner stated in the report that a DLCO (SB) test was not performed. An October 2009 VA PFT shows an FVC of 108 percent of predicted value pre-bronchodilator, and a DLCO (SB) of 68 percent of predicted value. There were no significant changes post-bronchodilator. The PFT was interpreted as showing a mild obstructive ventilatory defect. (VA treatment records dated in April 2010, July 2010, November 2010, June 2011, April 2012, and October 2012 cite to the results from the October 2009 PFT; they do not reflect results from subsequent PFT's.) A July 2010 VA examination report (contracted out to a private provider) reflects that a PFT yielded an FVC of 79 percent of predicted value post-bronchodilator. The examiner stated in the report that a DLCO (SB) test were not performed. A September 2014 VA PFT, performed as part of a VA examination, reflects an FVC of 99%, post-bronchodilator, and a DLCO interpreted as normal, as reflected in a September 2014 addendum to the July 2014 VA examination report (which was generated prior to the new PFT). According to the September 2014 addendum, the PFT was interpreted as showing a mild obstructive ventilatory defect. The Veteran had normal lung volumes and diffusion. There was no significant response to bronchodilator. The examiner noted that there was a significant change of FEV1 compared with the October 2009 PFT, which suggested a progression of the Veteran's emphysema, for which service connection has not been established. In this regard, in a March 2015 addendum, the examiner stated that the FEV1 was a progression of chronic obstructive pulmonary disease (COPD), which was due to the Veteran's tobacco use and not due to asbestos exposure. The examiner further stated that the Veteran's DLCO remained stable, and that this was the most reflective measurement of the Veteran's pleural plaques, which were related to asbestos exposure. A December 2015 VA examination report states that the results of an August 2015 PFT showed an FVC of "4.61% predicted," and a DLCO of "20. % predicted [sic]." A September 2016 medical opinion by a VA medical doctor explains that the reported DLCO in the December 2015 report was in error. The examiner explained that the absolute value was 20.4, and the predicted value was actually 113%, which was normal and consistent with the Veteran's August 2016 PFT (discussed below), which also fell within the normal range. Although the examiner was not asked to comment on the FVC of 4.61 recorded in the December 2015 VA examination report, the Board finds that this was also an absolute value in light of the September 2016 opinion regarding the DLCO recorded in the December 2015 VA examination report. In this regard, the percentages of predicted value have not otherwise been provided using decimals (as reflected in the PFT's), and a percentage of 4.61 is so far below the lowest post-bronchodilator FVC percentage of predicted value recorded in the PFT's, which is 79 percent, as to strongly indicate that this number is an absolute value and not a percentage. The absolute value of the Veteran's FVC's in the PFT's dating from 2008 through 2016 have ranged from 3.41 (July 2010 PFT) to 4.99 (October 2009 PFT). The August 2015 FVC value of 4.61 falls squarely within this range, further bearing out a finding that this number represents an absolute value. In the July 2010 VA examination report, the FVC of 3.41 was found to be 79 percent of predicted value. It thus clearly follows as a matter of logic that an FVC of 4.61, which is higher than 3.41, is not below 79 percent of predicted value. The August 2016 VA examination report shows that an August 2016 PFT yielded an FVC of 80 percent predicted value post-bronchodilator, and a DLCO of 88 percent. The examiner stated that the DLCO most accurately reflected the level of disability associated with the Veteran's asbestosis. With regard to functional impairment, the examiner found that the Veteran's nonservice-connected COPD was the pulmonary condition that limited performance. The above evidence shows that the Veteran's asbestosis has not been manifested by an FVC of 74 percent or lower, or a DLCO (SB) of 65 percent or lower. Thus, the criteria for a rating of 20 percent or higher under the General Rating Formula based on FVC or DLCO (SB) results are not satisfied. See 38 C.F.R. § 4.97, DC 6833. The remaining criteria for a rating of 20 percent or higher under the General Rating Formula are not satisfied. A maximum exercise capacity test is not of record. As noted above, one is not required to evaluate the Veteran's respiratory disorder. See 38 C.F.R. § 4.96(d)(1)(i). The evidence does not show that the Veteran has cor pulmonale or pulmonary hypertension, or that he requires outpatient oxygen therapy due to his asbestosis. Accordingly, the criteria for a 20 percent rating or higher under the General Rating Formula are not satisfied. See id. The Board notes that diagnostic imaging studies have shown pleural plaques. See, e.g., September 2015 VA Computed Tomography (CT) study; August 2016 VA Examination Report. As explained by the August 2016 VA examiner, these are perhaps the most common complication of asbestos exposure. The evidence does not show that they cause additional disability or disability distinct from the manifestations rated under DC 6833. In this regard, there is no evidence that the Veteran has chronic pleural effusion or fibrosis due to asbestos exposure. The August 2016 VA examination report states that there is no evidence of fibrosis on any of the CT scan reports. Thus DC 6845, which pertains to chronic pleural effusion or fibrosis, does not apply. See 38 C.F.R. § 4.97. The March 2015 VA medical opinion states that the Veteran's DLCO was the most reflective measurement of his pleural plaques, which is rated under DC 6833. Two articles of record state that pleural plaques are benign, and the most common manifestation of past exposure to asbestos. "Pleural Plaque," by I. Binkle and A. Gaillard; "Pleural Plaques, Information for Health Care Professionals," Published by the British Thoracic Society. They state that plaques only indicate that there has been exposure to asbestos, and are nearly always asymptomatic. Id. The Veteran also has a 1.3 centimeter nodule in his right lung that has been slowly growing over time. See August 2016 VA Examination Report. A May 2015 private treatment record notes that the Veteran was to undergo surgery to remove the nodule. However, a May 2016 private treatment record from the same physician indicates that the nodule was not surgically removed, and was considered a benign finding. There is no indication that this nodule causes additional disability or limitations. Moreover, it has not been service-connected as a manifestation of, or secondary to, the Veteran's asbestosis. The August 2016 examiner stated that until a diagnosis is made regarding the nodule, it would be "pure speculation" as to whether it is related to asbestos exposure. The VA examination reports reflect that the Veteran has shortness of breath, asthma attacks, and gets easily fatigued with ambulation. However, the Veteran also has emphysema (COPD), which has not been service connected. The August 2016 VA examiner found that the Veteran's COPD was predominately responsible for the limitation in pulmonary function. To the extent that the Veteran may have shortness of breath and associated limitations due to asbestosis as opposed to nonservice-connected COPD, this is contemplated and compensated by the schedular criteria for rating asbestosis. These criteria are largely based on the results of pulmonary function tests, whose purpose is to measure such effects. Cf. Doucette v. Shulkin, 28 Vet. App. 366, 369, 371 (2017) (holding that criteria for hearing loss, which are based solely on numerical results of audiological testing, contemplate the functional effects of hearing loss in "various contexts," as these are "precisely the effects that VA's audiometric tests are designed to measure"). There is no indication that the Veteran's asbestosis is more severe than what is captured by the rating criteria, or that it otherwise constitutes such an exceptional or unusual disability picture as to render application of the schedular criteria impractical. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Indeed, the August 2016 examiner stated that the DLCO most accurately reflected the level of disability associated with the Veteran's asbestosis, and this is specifically rated under DC 6833. See 38 C.F.R. § 4.97. Accordingly, the Board finds that referral of this case for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun, 22 Vet. App. at 114. In sum, the Veteran's asbestosis has not met or more nearly approximated the criteria for a rating higher than 10 percent at any point during the pendency of this claim. Because the preponderance of the evidence weighs against a higher rating, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. ORDER An initial rating higher than 10 percent for asbestosis is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs