Citation Nr: 19195388 Decision Date: 12/19/19 Archive Date: 12/19/19 DOCKET NO. 18-42 861 DATE: December 19, 2019 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a respiratory condition is reopened. Entitlement to service connection for bronchial asthma is granted. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. Entitlement to an initial compensable rating for interstitial pulmonary fibrosis is denied. FINDINGS OF FACT 1. A March 1980 Rating Decision denied service connection for a respiratory condition. The Veteran did not appeal. 2. At the time of the March 1980 Rating Decision, the record did not contain evidence showing the Veteran’s respiratory condition was related to service. Subsequent to that decision, the Veteran submitted a positive nexus opinion. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s bronchial asthma is related to service. 4. The Veteran’s COPD is related to service. 5. The Veteran’s interstitial pulmonary fibrosis is not manifested by Forced Vital Capacity (FVC) of 75 to 80 percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCBO (SB)) of 66 to 80 percent predicted. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a respiratory condition. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2018). 2. The criteria to establish service connection for bronchial asthma have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 3. The criteria to establish service connection for COPD have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 4. The criteria for an initial compensable rating for interstitial pulmonary fibrosis have not been met. 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 6825 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to March 1975. The Veteran appeals a February 2016 Rating Decision by the Agency of Original Jurisdiction (AOJ). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. Nevertheless, the M21-1 (Developing Claims for SC for Asbestos-Related Diseases) does provide guidance. See M21-1, pt. IV, subpt. ii, § 1.I.3 (last accessed on October 9, 2018). With respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See Dyment v. West, 13 Vet. App. 141, 145 (1999). The applicable section of the M21-1 notes a Veteran’s probability of asbestos exposure can be classified by military occupational specialty (MOS). If an MOS is listed as minimal, probable, or highly probable asbestos exposure should be conceded for the purposes of scheduling an examination. See M21-1, pt. IV, subpt. ii, § 1.I.3.d (last accessed on October 9, 2018). Importantly, many people with asbestos-related diseases have only recently come to medical attention because the latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. See M21-1, pt. IV, subpt. ii, § 2.C.2.f (last accessed on October 9, 2018). In Overton v. Wilkie, the Court of Appeals for Veterans Claims (Court) held that the Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons and bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision. 2018 U.S. App. Vet. Claims LEXIS 1251, at *13-14 (Sept. 19, 2018). In this particular case, because there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims, and use is beneficial to the Veteran, the Board finds the M21-1 persuasive. The Veteran is diagnosed with asthmatic bronchitis and COPD. See February 2016 VA examination report. The Veteran contends he worked with explosives and was exposed to asbestos in service. See December 2015 Veteran Statement and August 2018 VA Form 9. The Veteran served aboard the U.S.S. Enterprise as an engine mechanic. See DD-214. A review of the M21-1, Part IV.ii.1.I.3.c lists the MOS of Engine Mechanic and Engineman as probable for asbestos exposure in service and as such, asbestos exposure is conceded. As to nexus, Dr. J.S. stated the Veteran’s lung changes are a direct result of exposures as a machinist on ships working with air conditioning units and asbestos components. See June 2015 Dr. J.S. Letter. Dr. J.S. is the Veteran’s treating physician to include for the conditions of asthmatic bronchitis and COPD. Id. The Veteran was also treated for respiratory issues just 2 years after service. See October 1977 Treatment Record. The Veteran also credibly stated he developed respiratory symptoms right after service. See August 2018 VA Form 9 and December 2015 Veteran Statement. The Board finds that there is persuasive evidence of record establishing a link between the Veteran’s bronchial asthma and COPD. Accordingly, the Board finds that a grant of service connection is warranted for bronchial asthma and COPD. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, 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); 38 C.F.R. § 3.102. Under the General Rating Formula for Interstitial Lung Disease, a 10 percent disability rating is warranted for FVC of 75 to 80 percent predicted, or; DLCBO (SB) of 66 to 80 percent predicted. FVC of 65 to 74 percent predicted, or; DLCO (SB) of 56 to 65 percent predicted warrants an evaluation of 30 percent. 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 warrants an evaluation of 60 percent. 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 or pulmonary hypertension, or; requires outpatient oxygen therapy warrants an evaluation of 100 percent. 38 C.F.R. § 4.97, DCs 6825-6833. In evaluating certain respiratory disorders, including the one at issue, pulmonary function tests (PFTs) are required, except in the following circumstances: (i) when the results of a maximum exercise capacity rest are of record and are 20 ml/kg/min or less; if a maximum exercise capacity test is not of record, evaluation is based on alternative criteria; (ii) when pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed; (iii) when there have been one or more episodes of symptoms of acute respiratory failure or; (iv) when outpatient oxygen therapy is required. 38 C.F.R. § 4.96(d)(1). Post-bronchodilator results are required when PFTs are done for disability evaluation purposes except when the results of the pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.69(d)(4). Here, the Veteran’s February 2016 and July 2018 VA examinations show FVC at 81 percent and DLCO at 115 percent. February 2016 VA treatment records note no evidence of obstruction, no restriction, normal DLCO, and show no freestanding FVC percentage. There are no other PFTs of record. The Veteran also does not provide argument on how his condition is worse than his PFTs to warrant a higher rating. The Veteran’s PFT results from both his VA examination results do not meet the criteria as outlined above for a compensable rating. The evidence also does not demonstrate cor pulmonale or pulmonary hypertension, nor is there evidence indicated that the Veteran requires outpatient oxygen therapy. Accordingly, a compensable rating is not warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.