Citation Nr: 20042371 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 18-35 141 DATE: June 23, 2020 ORDER Entitlement to a compensable rating for benign pleural plaquing due to asbestos exposure is denied. FINDING OF FACT Throughout the pendency of this claim, the Veteran’s pleural plaquing due to asbestos exposure have been manifested by FVC (Forced Vital Capacity) of greater than 80 percent of predicted value, and/or DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) of greater than 80 percent of predicted value. A May 2019 VA examiner indicated that the Veteran’s chronic obstructive pulmonary disease (COPD) with asthma is responsible for the Veteran’s respiratory symptoms to include abnormal pulmonary function testing. CONCLUSION OF LAW The criteria for an initial compensable rating for the Veteran’s service-connected benign pleural plaquing due to asbestos exposure has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.96, 4.97, Diagnostic Code (DC) 6833. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1958 to March 1961. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was before the Board in August 2018 and was remanded for further development. A compensable rating for benign pleural plaquing due to asbestos exposure is denied. The Veteran contends that he is entitled to a compensable rating for his service-connected benign pleural plaquing due to asbestos exposure. Legal Criteria Disability ratings are based on average impairment in earning capacity resulting from a disability and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1110; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. DC 6833 provides the rating criteria for the Veteran’s service-connected benign pleural plaquing due to asbestos. 38 C.F.R. § 4.97. Under the General Rating Formula for Interstitial Lung Disease, a 10 percent disability rating is warranted for Forced Vital Capacity (FVC) of 75 to 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. 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. 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 test 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 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 pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. See 38 C.F.R. § 4.96 (d)(4). In applying the rating criteria, post-bronchodilator results are to be used unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre-bronchodilator values should be used for rating purposes. 38 C.F.R. § 4.96(d)(5). Accordingly, the better of the two results will be discussed below. When there is a disparity between the results of different PFTs (FEV-1 (Forced Expiratory Volume in one second), FVC etc., so that the level of evaluation would differ depending on which test result is used, the Board will use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(7). Factual Background In February 2018 VA received he Veteran’s claim for an increased rating for his service-connected benign pleural plaquing due to asbestos exposure. A May 2017 VA treatment indicated that the Veteran has asbestos exposure but ruled out interstitial lung disease. The conducting physician explained that the Veteran has multiple pleural plaques, the majority of which are calcified which are likely secondary to a history of asbestos exposure. The Veteran was afforded a March 2018 VA examination during which the conducting physician indicated that the results of the Veteran’s PFT were as follows: FVC of 54 percent predicted and DLCO of 90 percent predicted. The examiner explained that the DLCO test results most accurately reflects the Veteran’s level of disability. In April 2018, the RO elected to continue a noncompensable evaluation of the Veteran’s benign pleural plaquing based on the DLCO (SB) results being greater than 80 percent of the predicted value. The RO did not rely on the FVC results due to the March 2018 VA examiner explaining that the DLCO test results most accurately reflected the Veteran’s level of disability. In an August 2018 correspondence, the Veteran indicated that his respiratory condition has worsened and that the results of the March 2018 VA examination did not accurately represent his level of disability. In its August 2018 decision, the Board acknowledged that the Veteran found that had multiple respiratory disorders and remanded this matter in order to determine the degree of the Veteran’s pulmonary impairment caused solely by his service-connected pleural plaquing. At an October 2019 VA examination the conducting physician opined that the Veteran’s COPD with asthma component was primarily responsible for the PFT results and that the asbestos-induced pleural plaques have no clinical impact on PFT results. The physician opined that the Veteran did not have restrictive lung disease because the medical record and the available PFTs that include lung volumes do not confirm restrictive lung disease diagnosis. Rather, the PFTs support air trapping associated with the Veteran’s established lung disease. The October 2019 physician further opined that the Veteran’s worsening shortness of breath was related to a progression of the COPD because a November 2018 CT scan of the chest showed a stable pattern for multiple bilateral pleural plaques. The physician explained there were no interstitial changes and that the Veteran has developed other respiratory disease processes due to asbestos exposure and there was no indication that the pleural plaques have impacted the Veteran’s respiratory function. The physician acknowledged that a cardiology note dated May 2019 noted that the Veteran displayed shortness of breath or dyspnea on exertion secondary to underlying asbestos lung disease and deconditioning. The physician explained that the assessment was not supported by the respiratory evidence which indicated that the Veteran’s COPD is predominantly responsible for his respiratory symptoms and PFT results. Analysis Upon review of the evidence, the Board finds that the Veteran’s pleural plaquing due to asbestos exposure warrants a noncompensable rating. The Board has considered the Veteran’s treatment records and VA examination reports, and has not found any documentation, for VA rating purposes, of FVC or DLCO warranting a compensable evaluation. The March 2018 PFT reflected results of FVC of 54 percent predicted and DLCO of 90 percent predicted. Pursuant to DC 6833, the Veteran’s DLCO was greater than 80 percent predicted, therefore, the Veteran’s pleural plaquing due to asbestos exposure does not warrant a compensable disability rating. With regard to the March 2018 PFT that reflected a FVC of 54 percent predicted, 38 C.F.R. § 4.96(d)(7) provides that when there is a disparity between the results of different PFTs so that the level of evaluation would differ depending on which test result is used, the Board will use the test result that the examiner states most accurately reflects the level of disability. In this appeal, the March 2018 examiner deemed the DLCO result the most accurate reflection of the Veteran’s pulmonary function; as such, the Board will use the March 2018 DLCO result for rating purposes. The Veteran is competent to provide evidence about his disability; for example, he is competent to describe his asbestos exposure and symptoms related to his asbestosis with pleural plaques diagnosis. See Layno v. Brown, 6 Vet. App. 465. However, he is not competent to identify a specific level of disability according to the appropriate diagnostic code. Competent evidence concerning the nature and extent of the Veteran’s disability was provided by the VA examiners who interviewed and evaluated him during the relevant period. Additionally, the results of a competent May 2019 VA examination indicate that the Veteran’s COPD is predominantly responsible for his worsening respiratory symptoms. The Board acknowledges that the Veteran’s pleural plaquing due to asbestos exposure constitutes a disability; it is because of this diagnosis that the Veteran has been granted service-connection for the condition. The Board cannot find, however, that the Veteran’s symptoms indicate a compensable level of impairment, because application of the objective medical evidence results in a noncompensable rating. Since the March 2018 PFTs do not include DLCO results below 80 percent, the Veteran’s pleural plaquing due to asbestos exposure have not met or approximated a compensable rating. 38 C.F.R. §§ 4.10, 4.31, 4.97, DC 6833. BRANDON A. WILLIAMS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.