Citation Nr: 20044525 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 17-52 633 DATE: July 2, 2020 ORDER A rating in excess of 60 percent for pleural plaque in the right hemothorax, prior to February 12, 2018, is denied.   FINDING OF FACT Prior to February 12, 2018, the Veteran’s pleural plaque in the right hemothorax did not involve Forced Vital Capacity less than 50-percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method 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. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for pleural plaque in the right hemothorax, prior to February 12, 2018, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 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 September 1955 to September 1959. The case is on appeal from a July 2015 rating decision. In November 2018, the Board issued a decision restoring a 60 percent rating for this disability. The Board also denied a rating in excess of 60 percent for the disability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in November 2019 granting a November 2019 Joint Motion for Remand (JMR). The Court’s order remanded the matter for action consistent with the terms of the JMR. The Board’s November 2018 decision also remanded a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU). That issue remains pending at the RO at present. A February 2020 rating decision granted a 100 percent disability rating for pleural plaque in the right hemothorax with pulmonary hypertension with right ventricular dysfunction due to asbestos exposure, effective from February 12, 2018. This grant resolved the appeal from that date, but not prior to that date. Hence, the benefit sought on appeal was not granted in full by the February 2020 rating decision and remains on appeal for the period prior to February 12, 2018. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A rating in excess of 60 percent for pleural plaque in the right hemothorax prior to February 12, 2018. The Veteran is seeking an increased rating for his service-connected respiratory disability. He filed a claim for increase in January 2015, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). This disability has been assigned a 60 percent rating throughout the appeal period prior to when the 100 percent rating went into effective in February 12, 2018. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s disability has been assigned a disability rating under DC 6833 of 38 C.F.R. § 4.97. The applicable rating schedule is set forth as follows: 6833 Asbestosis. General Rating Formula for Interstitial Lung Disease (diagnostic codes 6825 through 6833): Forced Vital Capacity (FVC) less than 50-percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (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 100 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 60 FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted 30 FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66- to 80-percent predicted 10   B. Discussion First, there was not Forced Vital Capacity (FVC) less than 50-percent predicted. The evidence, especially VA examinations in May 2015, October 2016, and June 2018, plus a VA evaluation in February 2015, show greater than 50-percent predicted FVC. Private (non-VA) pulmonary function testing from February 2018 was similar to that found at the time of the VA examinations. There are other private reports of record, but they do not indicate precise measurements of FVC testing. The May 2015 and October 2016 VA examiners did not conduct DLCO testing as not indicated for this Veteran, but the December 2018 VA examiner found DLCO of 66 percent predicted. None of the VA examiners conducted exercise capacity testing, but this is not required. See 38 C.F.R. § 4.96(d)(i). In the November 2019 JMR, the parties at the Court agreed that the Board did not discuss a potentially favorable February 2015 VA examination, which revealed an FVC of 40 percent. The Board now observes that this test result does not support a higher rating as it was a pre-bronchodilator result. The rating schedule requires post-bronchodilator studies 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). Here, the results were not normal, but the examiner did not provide a determination that post-bronchodilator studies should not be done and state why. Hence, the February 2015 VA examination’s indication of FVC at 40 percent cannot support assignment of a higher rating. The Board finds that this analysis addresses the concerns of the November 2019 JMR. Next, it is not factually ascertainable prior to February 2018 that the disability manifested with pulmonary hypertension. The RO granted the 100 percent rating based pulmonary hypertension after a December 2018 VA examination confirmed pulmonary hypertension due to the service-connected disability. The RO assigned the effective date from a February 12, 2018 private medical report diagnosing pulmonary hypertension. The Board now finds that pulmonary hypertension is not factually ascertainable prior to February 2018. The Veteran first reported to his private provider on February 6, which was several days prior to the February 12 evaluation, where pulmonary hypertension was diagnosed. At the February 6 appointment, pulmonary hypertension was not diagnosed, so it would be pure speculation to find that the pulmonary hypertension had manifested by that date. Even were it ascertainable, no increase in compensation would result from assigning the effective date 6 days earlier in February 2018 as no award may be made for any period prior to the first day of the calendar month following the month in which the award became effective. Hence, the 100 percent award could not be paid any earlier even if the effective date were from February 6, 2018. See 38 U.S.C. § 5305; 38 C.F.R. § 3.31. Of note, the December 2018 VA examiner cited an earlier study showing the presence of pulmonary hypertension. Specifically the examiner cited a March 2010 echocardiogram showing mild pulmonary hypertension. A copy of the echocardiogram cited by the VA examiner is not in the claims file. However, it is presumed that the VA examiner accurately reviewed it and summarized its findings in the examination report. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009). A remand to obtain the actual echocardiogram report is not needed. See, e.g., Prinkey v. Shinseki, 735 F.3d 1375, 1381, 1383 (Fed. Cir. 2013) (any possible error in not having the 2001 CT scan before the April 2006 medical examiners was harmless). A higher rating is nonetheless not assignable based on the March 2010 finding. That test was conducted well before the appeal period, which started in January 2015, even including the one year look back period. The December 2018 VA examiner cited two intervening echocardiograms, which showed no pulmonary hypertension. An earlier VA examiner in May 2015 also did not list pulmonary hypertension where asked to identify if it was present. Thus, there is intervening evidence between the March 2010 echocardiogram and the February 2018 study indicating an absence of pulmonary hypertension. See Delrio v. Wilkie, 32 Vet. App. 232, 241 (2019); see also, e.g., Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). As such, pulmonary hypertension is not factually ascertainable prior to February 12, 2018. Finally, the evidence shows that he did not have cor pulmonale and did not require outpatient oxygen therapy. This is not in material dispute. As the Veteran’s asbestosis is specifically listed in the rating schedule, it may not be rated by analogy under a different DC. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). In sum, the Board finds that, prior to February 12, 2018, the Veteran’s pleural plaque in the right hemothorax did not involve Forced Vital Capacity less than 50-percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method 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. Thus, the preponderance of the evidence is against a rating in excess of 60 percent prior to February 12, 2018. Therefore, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Accordingly, a higher rating is not warranted for pleural plaque in the right hemothorax. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.