Citation Nr: 21000212 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-54 526 DATE: January 4, 2021 ORDER From May 12, 2016 to February 10, 2020, a 30 percent evaluation, but no higher, for service-connected asbestosis is granted. Beginning February 11, 2020, a 60 percent evaluation, but no higher, for service-connected asbestosis is granted. FINDING OF FACT 1. From May 12, 2016 to February 10, 2020, the Veteran's service-connected asbestosis has not been manifested by an FVC of less than 70 percent predicted and DLCO (SB)) has never been shown to be less than 85 percent predicted. 2. At no point during the appeal period has the Veteran's service-connected asbestosis manifested by an FVC less than 50 percent predicted; DLCO (SB) less than 40 percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation; cor pulmonale; pulmonary hypertension; or required continuous outpatient oxygen therapy. CONCLUSION OF LAW 1. The criteria for entitlement to an initial 30 percent evaluation for service-connected asbestosis from May 12, 2016, to February 10, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, 4.97, Diagnostic Code 6833. 2. The criteria for a 60 percent rating, but no higher, for pulmonary asbestosis beginning February 11, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, 4.97, Diagnostic Code 6833. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1958 to January 1962 and from October 1963 to October 1979. This appeal comes before the Board of Veterans' Appeals (Board) from July 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2019. A transcript of the hearing has been associated with the claims file. In December 2019, the Board remanded the claim for an examination that was completed in January 2020. After a review of the remand, the Board is satisfied that there has been substantial compliance with its requested actions and no further action is necessary to comply with the remand’s directives. Therefore, the case is once again before the Board for appellate consideration of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. See 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where entitlement to compensation has already 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). However, where the evidence of record indicates fluctuations in the severity of symptoms during the rating period on appeal, an assignment of staged ratings is permissible. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Veteran’s disability is evaluated under Diagnostic Codes 6833 for asbestosis. Interstitial lung diseases, such as asbestosis, are rated in accordance with the General Rating Formula of Interstitial Lung Disease. 38 C.F.R. § 4.97, Diagnostic Code 6833. Under this formula, Forced Vital Capacity (FVC) of 75 to 84 percent predicted, or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted warrants a 10 percent evaluation. Id. A 30 percent evaluation is warranted for FVC of 65 to 74 percent predicted, or DLCO (SB) of 56 to 65 percent predicted. Id. A 60 percent evaluation is warranted for FVC of 50 to 64 percent predicted; DLCO (SB) of 40 to 55 percent predicted; or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. Id. A 100 percent evaluation is warranted for FVC less than 50 percent predicted; DLCO (SB) less than 40 percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation; cor pulmonale; pulmonary hypertension; or requiring continuous outpatient oxygen therapy. Id. As set forth under 38 C.F.R. § 4.96(d)(1)-(7), special criteria apply for Diagnostic Codes 6600, 6603, 6604, 6825-33, and 6840-45. These criteria provide for the following: (1) PFTs are required except: (i) when the results of a maximum exercise capacity test are of record and are 15 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 therapy oxygen is required. 38 C.F.R. § 4.96(d)(1). (2) If the DLCO (SB) test is not of record, evaluation is based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). (3) When the PFTs are not consistent with clinical findings, evaluation is based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a given case. 38 C.F.R. § 4.96(d)(3). (4) Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator tests should not be done and states why. 38 C.F.R. § 4.96(d)(4). (5) When evaluating based on PFTs, post-bronchodilator results are used in applying evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre-bronchodilator values are used for rating purposes. 38 C.F.R. § 4.96(d)(5). (6) When there is a disparity between the results of different PFT FEV-1 and FVC results, so that the level of evaluation would be different depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is used. 38 C.F.R. § 4.96(d)(6). (7) Finally, if the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio should not be assigned. 38 C.F.R. § 4.96(d)(7). Appeal Period from May 12, 2016 to February 10, 2020. The Veteran contends that the service-connected asbestosis is more disabling than is reflected by the initially assigned 0 percent rating. After review of the lay and medical evidence, the Board finds that a 30 percent evaluation is warranted from May 12, 2016 to February 10, 2020, and a 60 percent evaluation, but no higher, is warranted thereafter. In May 2016, the Veteran filed for service connection for asbestos related plural disease. In July 2016, the Veteran underwent a VA examination to determine the etiology and severity of the asbestos related plural disease. The Veteran reported dyspnea with minor exertion that had worsened in the past one-and-a-half-years. The VA examiner diagnosed asbestosis and opined that it was more likely than not related to service. On examination, the Veteran’s PFT results from an October 2015 test were used. The VA examiner indicated the PFT results accurately reflected the Veteran’s current pulmonary function. Test results indicated that pre-bronchodilator FVC was at 70 percent predicted, FEV-1 at 60 percent predicted, FEV-1/FVC at 96 percent, and DLCO predicted at 85 percent. The VA examiner indicated that because the Veteran had interstitial lung disease the most accurate test was the DLCO and that a post-bronchodilator test would not provide any additional information. The Veteran’s asbestosis did not require use of an oral or parasternal corticosteroid, antibiotics, or outpatient therapy. A June 2016 rating decision granted service connection for asbestosis, evaluated at 0 percent disabling. The Veteran filed a timely notice of disagreement and this appeal followed. In January 2020, the Veteran underwent a VA examination to determine the severity of the service-connected asbestosis. The VA examiner indicated the Veteran refused the PFT. In February 2020, the Veteran underwent private pulmonary function testing. Test results indicated that pre-bronchodilator FVC was at 55 percent predicted, FEV-1 at 50 percent predicted, FEV-1/FVC at 89 percent, and DLCO predicted at 75 percent. Because PFT testing was not conducted during the January 2020 VA examination the Board has considered whether additional examination is necessary and finds that it is not. The Veteran has indicated he did not refuse testing, which the Board finds credible. However, remanding for additional PFT testing would be similar to requesting a retrospective opinion and is unnecessary here because the Veteran has submitted a PFT test that is more current than the January 2020 exam. To the extent that the January 2020 examination does not contain PFT testing, the Board finds that remand for additional examination would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Specifically, any testing would only reveal current reading, which the Board already has, and any retrospective opinion would merely impose additional burdens on VA with no benefit flowing to the Appellant, because VA would be asking an examiner to resort to speculation as to what PFT results would be prior to February 2020. Turning to the evidence, after review of the lay and medical evidence of record, the Board finds that the symptoms of the Veteran’s service-connected asbestosis more closely approximate the 30 percent disability rating, but no higher, from May 12, 2016 to February 10, 2020. The Veteran's October 2015 PFT results indicate an FVC of 70 percent predicted, with FEV-1 at 60 percent predicted, FEV-1/FVC at 96 percent, and DLCO predicted at 85 percent. Such a measurement satisfies the rating criteria for 30 percent under Diagnostic Code 6833. The Board notes there is a disparity among the level of disability represented by the Veteran's FVC, FEV-1, and FEV-1/FVC level. While the VA examiner indicated the DLCO was the best representative of the lung function, the examiner failed to offer a rationale as to why, and further was opining on a tests the Veteran had taken 9 month prior. Nonetheless, the Board has afforded the Veteran the benefit of the doubt and will use his FVC results and therefore grant an initial evaluation of 30 percent for the service-connected asbestosis. See 38 C.F.R. § 4.96(d)(6). The Board also determines that the evidence of record between May 12, 2016 to February 10, 2020, indicates that the Veteran did not have the PFT measurements or satisfy the other criteria that would yield a disability rating in excess of 30 percent under either Diagnostic Code 6683. The Veteran's lowest measurements during this period are 70 percent predicted. The DLCO (SB) was measured at 85 percent. Moreover, the record does not reflect the results of a maximum exercise capacity test recorded at 20 ml/kg/min or less; a diagnosis of pulmonary hypertension; a diagnosis of cor pulmonale; a diagnosis of right ventricular hypertrophy; one or more episodes of acute respiratory failure; or requiring outpatient oxygen therapy. See 38 C.F.R. § 4.96 (d)(1)(i)-(iv). As such, for the period between May 12, 2016 to February 10, 2020, the Board finds that the Veteran is entitled to a disability rating of 30 percent under Diagnostic Code 6833. Appeal Period Beginning February 11, 2020. As stated above, in February 2020, the Veteran underwent private pulmonary function testing. Test results indicated that pre-bronchodilator FVC was at 55 percent predicted, FEV-1 at 50 percent predicted, FEV-1/FVC at 89 percent, and DLCO predicted at 75 percent. Once more, there is a disparity among the level of disability represented by the Veteran's FVC, FEV-1, and FEV-1/FVC levels. Here, the private PFT results do not indicate which PFT measurement most accurately reflected his pulmonary function during this period on appeal. Nonetheless, the Board has afforded the Veteran the benefit of the doubt and will assume his FVC is the most accurate reflection of his level of disability during this period on appeal. See 38 C.F.R. § 4.96(d)(6). The February 2020 PFTs indicate an FVC at 55 percent predicted. These results indicate that the Veteran is entitled to a 60 percent rating under Diagnostic Code 6833 beginning February 11, 2020. At no point during the entire appeal period does the record does not reflect the PFT measurements that approximate FVC less than 50 percent predicted; DLCO (SB) less than 40 percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation; cor pulmonale; pulmonary hypertension; or requiring continuous outpatient oxygen therapy, which are required for the 100 percent rating criteria. See 38 C.F.R. § 4.96 (d)(1)(i)-(iv). As such, at no point during the appeal period is an evaluation in excess of 60 percent warranted. Therefore, after review of the lay and medical evidence of record, the Board finds that the symptoms of the Veteran’s service-connected asbestosis more closely approximate the 30 percent rating criteria from May 12, 2016 to February 10, 2020, and the 60 percent rating criteria, but no higher, thereafter. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.