Citation Nr: 19101384 Decision Date: 01/07/19 Archive Date: 01/07/19 DOCKET NO. 17-07 594 DATE: January 7, 2019 ORDER Entitlement to a compensable disability rating for asbestos related pleural plaques (claimed as asbestosis) is denied. FINDING OF FACT A compensable disability rating for asbestos related pleural plaques (claimed as asbestosis) was discontinued in order to award a higher rating for obstructive sleep apnea. CONCLUSION OF LAW A compensable disability rating for asbestosis cannot be awarded concurrent with a compensable disability rating for sleep apnea. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.14, 4.96, 4.97. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to September 1974. This matter comes before the Board of Veterans’ Appeals (Board) from January 2017 and April 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an increased rating for asbestos related pleural plaques (claimed as asbestosis). The Veteran was awarded a 10 percent disability rating for asbestosis in January 2017. He filed a Form 9 in February 2017 disputing that rating and requesting an increase, and also filed a claim for sleep apnea in March 2017. VA issued a decision in April 2017 discontinuing the evaluation for asbestosis and granting a 50 percent rating for sleep apnea. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Diagnostic Code (DC) identifies the criteria for the various ratings available for a specific disability. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The evaluation of the same manifestation of a disability, under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Although it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board is bound by 38 C.F.R. § 4.96(a), which allows only one rating for coexisting respiratory conditions under diagnostic codes 6600 through 6817 and 6822 through 6847. These ranges include DC 6833 for asbestosis and DC 6847 for sleep apnea, meaning the two cannot be awarded at the same time. The regulation states: “A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.” This has been interpreted to mean that VA will evaluate coexisting service-connected respiratory conditions covered by § 4.96(a) under the criteria enumerated in the predominant disability’s Diagnostic Code. See Urban v. Shulkin, 29 Vet. App. 82, 95 (2017). In order to give the Veteran the highest possible rating, VA awarded 50 percent for sleep apnea and discontinued the lower rating for asbestosis. The Board finds that this is appropriate and reflects the severity of the overall disability. The Board recognizes that the award for sleep apnea was given after the Veteran filed his Form 9, and that the Veteran has received this information before, but wishes to ensure that the decision-making process is made clear. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.W. Strike, Associate Counsel