Citation Nr: 1808919	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  17-31 947	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an initial compensable disability evaluation for asbestosis.

REPRESENTATION

Veteran represented by:	Tennessee Department of Veterans' Services


ATTORNEY FOR THE BOARD

B. Riordan, Associate Counsel


INTRODUCTION

The Veteran had active service with the United States Navy from January 1959 to September 1988. 

This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran's current pulmonary functioning is a symptom of his nonservice-connected COPD, and not a symptom of his service-connected asbestosis.


CONCLUSION OF LAW

The criteria for an initial compensable disability evaluation for asbestosis have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.96, 4.97, Diagnostic Code 6833 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Analysis

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record.

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the Veteran.

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular Diagnostic Code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  The veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Evidence to be considered in the appeal of an initial assignment of a disability evaluation is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999).  In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (a "staged rating").  Fenderson, 12 Vet. App. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  Given the nature of the present claim for a higher initial rating, the Board has considered all evidence of severity since the effective date for the award of service connection. 

Entitlement to an Initial Compensable Rating for Asbestosis

The Veteran was awarded service connection and assigned a noncompensable disability evaluation for asbestosis, effective October 22, 2015, in a February 2016 rating decision.  The Veteran contends that his asbestosis warrants a 100 percent disability evaluation.

Asbestosis is rated under the General Rating Formula for Interstitial Lung Disease. 38 C.F.R. § 4.97, Diagnostic Code 6833.  Accordingly, a 10 percent evaluation is warranted for forced vital capacity (FVC) between 75 and 80 percent predicted, or; diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) of 66 to 80 percent predicted. A 30 percent evaluation is warranted for FVC of 64 to 74 percent predicted, or; DLCO (SB) of 56 to 65 percent predicted. A 60 percent evaluation is warranted 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 100 percent evaluation is warranted for FVC less than 50 percent predicted, 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. 38 C.F.R. § 4.97.

For rating purposes, post-bronchodilator findings are the standard in pulmonary assessment. Post-bronchodilator studies are required, and will be used for rating purposes, unless the post-bronchodilator results were poorer than the pre-bronchodilator results, or when the examiner determines that post-bronchodilator results should not be used and states why. 38 C.F.R. §§ 4.96 (d)(4), (5). 

In addition, "[w]hen there is a disparity between the results of different pulmonary function tests (PFT) . . . so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability." 38 C.F.R. § 4.96 (6) (2016). 

The Veteran was provided a VA pulmonary function examination in January 2016.  The VA examiner noted the Veteran was diagnosed with asbestosis in June 2015.  The examiner further noted a previous diagnosis of chronic obstructive pulmonary disease (COPD).  The Veteran reported a one and a half pack per day smoking habit for approximately 35 years.  The Veteran's respiratory condition required daily inhalational bronchodilator therapy, daily inhalational anti-inflammatory medicine, and daily Spiriva.  The VA examiner noted that the Veteran's COPD was predominantly responsible for the need for inhaled medications.  The examination reports that the Veteran did not require outpatient oxygen therapy, however, an October 2017 communication with the Veteran indicates he now requires oxygen therapy.

The VA examiner noted June 2015 and April 2014 x-rays of the Veteran related to shortness of breath, COPD, and centrilobular emphysematous changes.  Pulmonary function testing (PFT) showed pre-bronchodilator readings of an FVC of 61-percent predicted, FEV-1 of 43-percent predicted, and DLCO of 84-percent predicted; and post-bronchodilator readings of an FVC of 61-percent predicted, FEV-1 of 44-percent predicted.  The FEV-1/FVC readings were 70 percent pre-bronchodilator and 70 percent post-bronchodilator.  Finally, the VA examiner noted COPD is most likely the predominant condition affecting pulmonary function.

The Veteran's VA treatment records establish treatment for COPD and worsening pulmonary functioning dating back to at least December 2011.

After a review of the probative evidence of record the Board finds the Veteran's declining pulmonary function is a result of his nonservice-connected COPD, and not his recently service-connected asbestosis.  

The Board acknowledges the Veteran's argument that when symptoms of nonservice-connected disabilities and service-connected disabilities cannot be differentiated, the Board should consider the symptoms to be a product of the service-connected disability.  The Veteran's contention on that point is correct.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  However, at present, the January 2016 examiner, after an in-person examination of the Veteran and review of the Veteran's medical history, has determined the Veteran's COPD is predominantly responsible for the declining pulmonary functioning.  The Veteran's VA treatment records further establish the Veteran's history of COPD and the resulting decline in pulmonary functioning.  In this matter, the Veteran's symptoms of COPD and asbestosis have been differentiated.

The Board further acknowledges the Veteran's contention that his pulmonary condition is a result of his asbestosis.  In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g., experiencing shortness of breath.  Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  These statements are also credible.  However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment.  As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator.  Guerrieri v. Brown, 4 Vet. App. 467 (1993).  In this case, the Board finds that the January 2016 VA examination report and other probative medical treatment records have consistently indicated that the Veteran's nonservice-connected COPD is the cause of the Veteran's shortness of breath, not his service-connected asbestosis.  The probative evidence does not indicate that the Veteran's asbestosis results in a compensable functional limitation.  

Review of the probative evidence of record does not establish that the Veteran's asbestosis manifests in forced vital capacity (FVC) between 75 and 80 percent predicted, or; diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) of 66 to 80 percent predicted. Accordingly, entitlement to an initial compensable rating for asbestosis is not warranted. 	


ORDER

Entitlement to an initial compensable rating for asbestosis is denied.




____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs