Citation Nr: 21000523 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-26 594 DATE: January 5, 2021 ORDER Entitlement to an initial disability rating in excess of 60 percent for asbestosis with emphysema, prior to September 30, 2019, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 30, 2019, is remanded. FINDING OF FACT Prior to September 30, 2019, the Veteran’s asbestosis with emphysema was not manifested by: forced vital capacity (FVC) less than 50 percent of predicted value, 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; a requirement of outpatient oxygen therapy, or; forced expiratory volume in one second (FEV-1) less than 40 percent predicted value, or; the ratio of FEV-1 in one second to FVC (FEV-1/FVC) less than 40 percent, or; right ventricular hypertrophy, or; an episode(s) of acute respiratory failure. CONCLUSION OF LAW Prior to September 30, 2019, the criteria for a disability rating in excess of 60 percent for asbestosis with emphysema have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.3, 4.7, 4.21, 4.97, Diagnostic Code 6833. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1958 to May 1962. The Board previously remanded this matter in January 2019. In an August 2020 Supplemental Statement of the Case, the Regional Office (RO) increased the evaluation of asbestosis with emphysema from 60 percent to 100 percent disabling effective September 30, 2019 and continued the denial of the Veteran’s claim for TDIU, prior to September 30, 2019. 1. Entitlement to an initial rating in excess of 60 percent for asbestosis with emphysema prior to September 30, 2019 The Veteran contends that his respiratory condition has gotten worse and that he can no longer perform the type of work he had been doing. In his November 2015 statement, the Veteran explained getting very dizzy when bending and stooping over. He further explained he was not breathing as well as he was a year earlier and that if he attempts physical work, he will last less than a minute and be completely out of breath. Pulmonary clinic notes from March 2018 reflect the Veteran reported he walked slower because of dyspnea, for example, when packing a box, and he felt that this was worse since September. 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, 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 reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether they were raised by the Veteran, as well as the entire history of the veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Under Diagnostic Code 6833, asbestosis is rated under the General Rating Formula for Interstitial Lung Disease. A 100 percent rating is warranted for FVC less than 50 percent of predicted value, 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. 38 C.F.R. § 4.97, Diagnostic Code 6833. These criteria are disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) (finding only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). Under DC 6603, which addresses emphysema, a 100 percent rating requires forced expiratory volume in one second (FEV-1) less than 40 percent predicted value, or; the ratio of FEV-1 in one second to FVC (FEV-1/FVC) less than 40 percent; or DLCO (SB) of less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation, or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by echo or cardiac catheterization), or; an episode or episodes of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6603. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are conducted for disability evaluation purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R.§ 4.96. If the DLCO (SB) test is not of record, the disability may be rated based on alternative criteria if the examiner explains why the DLCO (SB) test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). The record does not include evidence that meets the criteria noted above prior to September 30, 2019. For example, the April 2014 VA examination report indicated post bronchodilator FVC of 65 percent predicted, FEV-1 of 48 percent predicted, and FEV-1/FVC of 76 percent predicted. The examiner noted that the reported pulmonary function tests accurately reflected the Veteran’s pulmonary function at that time. Treatment notes from January 2016 include a note indicating there had been no significant change compared to the prior study in April 2014. Similarly, treatment notes from May 2017 include a note indicating the Veteran’s postbronchodilator FVC and FEV1 were comparable between 2014 and 2017. The Board therefore finds that the criteria for a rating in excess of 60 percent for asbestosis with emphysema prior to September 30, 2019, have not been met and the appeal must be denied. REASONS FOR REMAND 1. Entitlement to a TDIU, prior to September 30, 2019, is remanded. In a May 2014 statement, the Veteran indicated he began working part time in 2006, was forced to retire in 2009, and then filed for Social Security benefits. Considering there may be outstanding and relevant Social Security records, a remand is required to allow VA to request these records. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Then, readjudicate the issue of entitlement to TDIU prior to September 30, 2019. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Vemulapalli 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.